Defamation in performance reviews or internal workplace evaluations are not something employers normally consider. However, most employers assume such statements are subject to a qualified privilege exception. Of course, most employers are wise enough not to repeat defamatory comments about their former or current employees to outside parties. While some states do not extend defamation’s reach to performance reviews or internal documents citing “non-publication,” Illinois courts do.
Elements of Illinois Defamation of Character
Generally, to bring a claim for defamation the plaintiff must show:
- 1. That the defendant published a false statement of fact.
- 2. That the defendant did so without privilege.
- 3. And finally, that there is a causal relationship between the published statement and damages to the plaintiff.
See Solaia Technology v. Specialty Pub. Co., 852 N.E. 2d 825, 839 (Ill. 2006) (citing Owen v. Carr, 113 Ill. 2d 273, 277 (Ill. 1986) and explaining that some statements are so harmful that special damages are presumed. This is a reference to defamation per se. Of course, defamation may occur in the context of performance reviews.
Defamation per se includes false statements made by a defendant that imputes to a plaintiff:
- 1. Criminal activity;
- 2. Adultery or fornication;
- 3. A loathsome disease; and
- 4. Word which the plaintiff, or impute lack of ability, in his or her trade, profession or business.
See Kolegas v. Heftel Broadcasting Corp., 607 N.E.2d 201, 206 (Ill. 1992). There are several defenses to defamation. Particularly relevant here is the defense of qualified privilege.
In Illinois Defamatory Comments in Internal Documents Satisfy the “Publication” Rule
Popko v. Continental Casualty Company, involved a trial attorney, Popko, who was terminated from his employment position by Defendant CNA (CNA later merged with Continental Casualty Company) and the issue of defamation in performance reviews. Popko v. Continental Casualty Co., 1-03-3389, (2005). Popko began working for CNA in 1983. The Plaintiff-employee’s evaluations were positive overall. Several years later, Popko took a two-week honeymoon, and was immediately terminated upon returning to his employer for “poor conduct he displayed during a performance review.” Id.
Tefft drafted a memorandum which alleged that Popko not only used profanity during a performance review, but that he made derogatory comments about Tefft and Izzo, during a staff counsel meeting, and “became belligerent” towards Tefft.
Eventually, Tefft reported these comments to his immediate supervisor David Izzo, and Izzo who subsequently reported the allegations up the chain of seniority until it reached CNA’s vice president. Finally, CNA terminated Popko. See id.
Unfortunately, the performance review was untrue. To exacerbate matters, CNA’s vice president, Bruce Johnston, failed to conduct an investigation or speak directly with Popko about these allegations, or even consider Popko’s previous glowing reviews. See id.
Popko brought suit against CNA for defamation in his performance review and intention interference with economic advantage.
Qualified Privilege Will Not Cover Defamation in Performance Reviews
At trial, Defendant-employer instructed the jury to find for CNA with respect to qualified privilege. However, the jury refused and instead found against all Defendants on defamation, and against Tefft and Izzo with respect to tortious interference.
The Defendants appealed to the Illinois Court of Appeals for the Fifth District, arguing that the interoffice memorandum created by Tefft was not a communication, but an instance of a corporation speaking talking “to itself.” Id.
Reviewing the appeal de novo, the Court dismissed the Defendants’ appeal. The Court held that there is binding case law which states that internal corporate documents which republish defamatory statements satisfy the “publication” prong in defamation.
In its analysis, the Court cited Jones v. Britt Airways, Inc. 622 F. Supp. 389, 391 (N.D. Ill. 1985). In Jones, a corporate defendant was liable for employment defamation made by other employees about her dismissal. As such, the Jones Court found that the publication rule is satisfied even if “‘the defendant’s own agent, employee or officer, even when the defendant is a corporation’” makes the defamatory statement. Jones, 622 F. Supp. at 391 (quoting W. Keeton, Prosser & Keeton on Torts §113, at 798 (5th ed. 1984)). Additionally, Another court reached the same conclusion. In Gibson v. Philip Morris, Inc., 292 Ill. App. 3d 267 (5th Dist. 1997), the court granted the Plaintiff’s defamation claim when several employees falsely reported in an internal memo that Plaintiff sold company incentive products at a yard sale. In doing so, the court also awarded punitive damages.
In sum, The court reasoned that this approach appropriately balanced competing interests rather than granting a blanket statement which would practically amount to absolute privilege for internal company documents. Popko v. Continental Casualty Co., 1-03-3389, (2005).
Employers — Avoid Defamatory Comments in Internal Documents
For Illinois’ corporate employers, the rule state in Popko presents a heightened standard for defamation in performance reviews. For instance, statements made within a state governmental agency with a duty to serve state residents, are not defamatory because they are normally subject to qualified privilege.
However, the basic recommendation is the same—a reasonable degree of caution and a thorough investigation must follow. The publication/non-publication rule is subject to a split across several jurisdictions with some states not following Illinois’ approach. This presents a challenge for large employers with multiple corporate offices or subsidiaries located throughout the United States. Employers should carefully vet their employee statements to avoid the “yard-sale” situation in Gibson v. Philip Morris, Inc. Additionally, employers should thoroughly investigate all parties when questionable behavior arises in the workplace context. As Popko shows, it is not enough to report a defamatory statement to HR and then fire an individual on the spot.
Have an employment question? Contact Chicago Employment Attorneys at Syed Law.