How Defamation Law Can Affect Sexual Harassment Claims in New York

Some defendants in New York City have responded to sexual harassment lawsuits not only by denying the plaintiff’s allegations, but also by counterclaiming for defamation. This is a common-law claim alleging that a false statement has caused a person financial harm. New York City sexual harassment attorneys are familiar with many ways people have tried to prevent victims of sexual harassment from telling their stories. In some situations, the purpose of a defamation lawsuit is to prevent a person from speaking out by confronting them with significant litigation costs. This is known as a “strategic lawsuit against public participation” (SLAPP). Many states have enacted “anti-SLAPP statutes” that allow motions for early dismissal of frivolous suits. Some anti-SLAPP laws provide privilege against defamation claims for statements made in connection with legal claims. New York has an anti-SLAPP statute, but it is very limited in scope.

Sexual harassment is considered a type of unlawful sex or gender discrimination under New York City’s antidiscrimination laws, such as the New York City Law Against Discrimination and Title VII of the Civil Rights Act of 1964. In order to prevail on a claim, a plaintiff must publicly allege all of the facts that they contend constitute sexual harassment. Unless a court orders otherwise, these details become part of the public record.

A claim for defamation requires proof of four elements under New York law: (1) a false statement made to a third party; (2) a lack of authorization or privilege for the statement; (3) negligence, or worse, as to the statement’s falsity; and (4) actual damage to the plaintiff. See Technovate LLC v Fanelli, 2015 NY Slip Op 51349(U). A false statement that alleges criminal activity, or that is intended to injure a person’s occupation, is considered defamation per se under New York law. Id. If the person claiming defamation is a public figure, they must prove that the defendant acted with actual malice.

Whether a lawsuit is a SLAPP or not is often a matter of opinion. Some state anti-SLAPP laws allow a person sued for defamation to move to dismiss a suit shortly after they have been served with court papers, but before they have incurred substantial expense. The plaintiff claiming defamation must produce evidence substantiating their allegations. New York’s law only applies in “action[s] involving public petition and participation,” meaning commentary on or challenges to applications or petitions to the government. N.Y. Civ. Rights L. §§ 70-a76-aN.Y. C.P.L.R. § 3211(g). California law, in contrast, states that communications made “without malice” in relation to “a complaint of sexual harassment” are privileged from defamation claims. Cal. Civ. Code § 47(c).

A New York City court rejected a claim that allegations of sexual harassment were privileged against a defendant’s counterclaim for defamation in Volpe v Paniccioli, 2017 NY Slip Op 51554(U). The defendant alleged defamation based on the lawsuit itself and statements allegedly made by the plaintiff and her husband to a newspaper and the defendant’s insurance carrier. The court held that the alleged statements did not fall under any privilege established by New York law. In other situations, individuals accused of sexual harassment have filed separate defamation lawsuits. A defamation lawsuit by an alleged harasser against his accuser, for example, was followed by a counterclaim for defamation and assault.

The employment attorneys at Phillips & Associates represent New York City workers in claims for unlawful workplace practices like sexual harassment. To schedule a free and confidential consultation to see how we can help you, please contact us today online or at (866) 229-9441.

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