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).
An allegedly defamatory statement must have lacked “privilege or authorization.” Id. at 517. New York law provides an “absolute privilege” for statements made in the course of “a public function, such as executive, legislative, judicial or quasi-judicial proceedings.” Frechtman v. Gutterman, 115 A.D.3d 102, 106 (2014). Statements made as part of a claim of sexual harassment could fall under this privilege.
The plaintiff in Cortes was employed by a major news organization in New York City. In 2016, another employee accused him of sexually assaulting her about one year earlier. Their employer terminated him shortly afterwards. His severance agreement included a mutual non-disparagement clause. The accuser filed suit against the employer, and the two parties entered into a settlement agreement in early 2017. The media reported on the allegations, the lawsuit, and the settlement.
The plaintiff’s complaint alleged that the settlement breached the non-disparagement clause. It included claims of breach of contract and defamation per se. The court called the lawsuit “a conspiracy theory…worthy of its own Martin Scorsese thriller.” Cortes, opinion at 9. It dismissed the defamation claims in part because the plaintiff did not allege that any particular statements were false. Even the allegation of sexual assault was “uncontested as true.” Id. at 25.
Phillips & Associates’ knowledgeable and skilled sexual harassment attorneys advocate on behalf of employees and job applicants in New York City, assisting them in claims based on sex discrimination, sexual harassment, sexual coercion, and other unlawful employment practices. To schedule a free and confidential consultation to discuss your case, contact us today at (212) 248-7431 or online.
More Blog Posts:
Nondisparagement Clauses Could Interfere with Ability to Assert New York City Sexual Harassment Claims, New York Employment Attorney Blog, April 23, 2018
Sexual Harassment and the Statute of Limitations: Why New York Employees Might Still Have a Claim Even if They Do Not Come Forward Right Away, New York Employment Attorney Blog, November 2, 2017
Sexual Harassment and Retaliation: Why Women Might Be Afraid to Complain About New York Sexual Harassment, New York Employment Attorney Blog, November 1, 2017