Asserting a New York City sexual harassment claim requires not only careful planning and preparation but also courage. Standing up and speaking out can be extremely difficult for anybody. Laws like the New York City Human Rights Law and Title VII of the Civil Rights Act of 1964 prohibit employers from retaliating against individuals who report unlawful activity. People who are subjects of sexual harassment allegations may be able to respond by using counterclaims or separate litigation. A lawsuit filed recently in a New York City court offers an example of this, although this particular case targeted the defendant in a sexual harassment case instead of the plaintiff. The lawsuit alleged defamation and numerous other claims in connection with a sexual harassment case, but it was dismissed with prejudice. Cortes v. Twenty-First Century Fox America, Inc., et al., No. 1:17-cv-05634, opinion (S.D.N.Y., Jan. 9, 2018).
Defamation is a blanket legal term for false statements that cause damage to a person. Because of the First Amendment’s free speech protections, courts have established strict limits on defamation claims. A defamation claim is not likely to be an effective means of countering a sexual harassment claim, but it happens sometimes. It is useful to know how defamation claims work and how they might not apply to statements made in connection with an employment lawsuit.
The specific elements of defamation vary from one jurisdiction to another. At a minimum, it requires evidence of a false statement that caused actual harm. If the plaintiff is a public figure, they must also show “actual malice,” i.e., that the defendant intended for the plaintiff to be harmed. Church of Scientology Intl. v. Behar, 238 F.3d 168, 173 (2d Cir. 2001). Certain types of statements are considered inherently defamatory, if false. This is known as defamation per se, and it may include statements falsely accusing a person of a “serious crime.” Lan Sang v. Ming Hai, 951 F.Supp. 2d 504, 525 n. 6 (S.D.N.Y. 2013).