Defamation Liability Related to Workplace Investigations
Malice sufficient to defeat the conditional privilege has been found where there has been a failure to investigate the statement(s) or conduct at issue thoroughly and verify the facts stated. Rollenhagen v. City of Orange (1981) 116 Cal.App.3d 414, 423; Widener v. PG&E (1977) 75 Cal.App.3d 415, 434-35. It has also been found where there has been purposeful avoidance of the truth or deliberate decision not to investigate facts. Antonovich v. Sup.Ct. (Schwellenbach) (1991) 234 Cal.App.3d 1041, 1048. Where the substance of the defamatory statements pose a substantial danger to the defamed party’s reputation, there is an even greater obligation to investigate the facts thoroughly and fairly. Failure to do so constitutes reckless disregard for the truth. Widener, supra, at 434. This includes the failure to interview obvious witnesses who could have confirmed or disproved the allegations. Khawar v. Globe Intern., Inc. (1998) 19 Cal.4th 254, 276.
“Although failure to investigate will not alone support a finding of actual malice, the purposeful avoidance of the truth is in a different category . . . Inaction, i.e., failure to investigate, which was a product of a deliberate decision not to acquire knowledge of facts that might confirm the probable falsity of [the subject] charges will support a finding of actual malice.” Antonovich v. Superior Court, 234 Cal.App.3d 1041, 1048 (1991) (internal citations omitted).
While there is no set way to conduct an appropriate investigation, a proper investigation should meet the EEOC’s guidelines in conducting investigations. The EEOC’s enforcement guidance is available on their website and can be viewed here: http://www.eeoc.gov/policy/docs/harassment.html In addition, the Association of Workplace Investigators (“AWI”) publication, Guiding Principles for Investigators Conducting Impartial Workplace Investigations, lays out eleven principles that reflect best practices for workplace investigations: http://www.aowi.org/assets/documents/guiding%20principles.pdf