Education Law - SchoolNET

“Compelled Self-Publication Defamation” - a Potential New Cause of Action

We have seen an increasing number of allegations by former employees asserting claims of defamation against their school district employers. Typically, such employees have alleged that the districts have published false statements regarding their dismissals. A number of states, however, have recognized a cause of action for defamation even where the former employer did not publish the alleged defamatory reason for the former employee's dismissal. Instead, the discharged employee claimed in those cases to have been "compelled" by the former employer to repeat the defamatory reason given by the employer for the termination during the process of applying for a new job. Thus, under this theory, an employer can be held liable for defamation, even where it does not publish the allegedly false reason for the termination.

The courts have been far from unanimous in accepting "compelled self-publication defamation" as a cause of action. There have been some developments, however, that present good reason for a heightened concern on the part of New York school districts.

In one case, a downstate federal court, while noting that there is "scant law" on this issue, stated that "it seems reasonable to assume that the New York Court of Appeals would adopt the doctrine in a form that allowed for liability where, such as in the instant case, there was a high degree of compulsion that required the reporting of the defamatory matter."

This case involved the New York City School District. There, the District sent the plaintiffs, who were transportation companies, a letter alleging certain acts of bribery. As part of the City's bidding requirements, the plaintiffs were required to report such allegations of criminal misconduct on a questionnaire, which was then incorporated into a system that automatically would report those allegations concerning every subsequent contract bid by the plaintiffs. The Court found, based upon these facts and assuming that New York would adopt a cause of action for compelled self-publication, that the publication requirement for the tort of defamation was satisfied. In another case, a New York trial court also suggested that the doctrine of compelled self-publication should be recognized, especially given a situation where the alleged defamatory statement must be reported by the former employee.

So, recognizing that school districts might be confronted with this new tort, not only by former employees, but also by unsuccessful bidders, what should be done? We would suggest at least the following:

Districts should exercise reasonable care in stating the reasons for employee dismissals or the rejection of bids. Unnecessarily inflammatory or pejorative language should be avoided.
If a reason for an employee dismissal or bid rejection must be stated, a district should make every effort to provide an accurate statement characterizing its action, while avoiding unnecessary details underlying its reasons for acting.
Districts may also wish to examine their procedures for investigating employee misconduct and responsibility of bidders, so that new or additional procedures may be instituted to ensure that any reason given for either employment termination or disqualification of a bidder has a solid basis.
Formulating an appropriately tailored procedure for responding to inquiries from prospective employers, or other districts or entities seeking information concerning potential contractors, should also be high on districts' lists of things to consider.

Particularly with respect to problematic dismissals, if a district makes any statement whatsoever, it may wish first to get the employee's agreement to the exact wording to be used in such a statement. This is often accomplished by way of a separation or termination agreement with the employee as part of the consideration for a general release of claims.