Can an alleged harasser sue a workplace investigator for defamation if the report says not-so-nice stuff?

Here’s a situation that may arise from time to time. Perhaps, you’ve dealt with it too.

One employee complains to the company about a co-worker’s alleged unwanted sexual contact in the workplace. So, what does the company do?

Title VII Of the Civil Rights Act of 1964 (and any number of state and local laws) tasks the employer with promptly addressing the allegations and taking steps reasonably designed to end the complained-of behavior.

When the allegations are serious enough (e.g., sexual assault), the process often begins with hiring a third-party (often a lawyer) to investigate. When the investigation ends, the investigator may also prepare a report that summarizes the allegations, includes evidence and summaries of interviews, and recommends steps the employer can take to address the situation further.

Sometimes the report contains some not-so-very-nice things that one employee may have to say about another, which is what apparently happened in this opinion I read last night.

An employer hired a law firm to investigate claims that an employee had sexually assaulted or harassed a co-worker. The law firm prepared a report that allegedly included defamatory statements from some of the alleged harasser’s co-workers. The law firm provided the report to the employer.

And then, the harasser sued the law firm for defamation.

Now, if this sounds like grasping at straws to you, you’re not alone. Here was the court’s take as it dismissed the complaint:

Plaintiff would have this Court conclude that an attorney hired to investigate employee misconduct may be found liable for defamation to that employee, if, following the conclusion of the investigation, the attorney discloses to the employer the content of witness statements made during the investigation. The law does not support such a conclusion, and indeed precludes any such holding…[A]ttorneys hired by employers to conduct such an investigation must be able to collect and convey the findings without fear of defamation lawsuits. The alternative would chill the well-established public policy in favor of “full and frank communications between attorneys and their clients.” 

Incidentally, the same agency principals would apply even if the investigator is not a lawyer.

Plus, communication of true statements is not defamation. So, investigators merely reporting what witnesses or complainants share with them would not be actionable.