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CA employers may now disclose allegations of sexual harassment during employee reference checks

Adding to the list of 2019 laws combatting sexual harassment in the wake of the #MeToo movement is Assembly Bill 2770 (AB-2770). AB-2770 was put forth to address concerns that the fear of defamation liability dissuades victims of sexual harassment from coming forward to make claims and dissuades employers from investigating or advising prospective employers about alleged sexual harassment.

Under existing law (Civil Code section 47), an employer may inform a prospective employer whether or not the employer would rehire an employee. It also allows for employers to make comments concerning the prospective employee's job performance or qualifications. These statements may be made without the risk of being held liable for defamation of the applicant so long as they are made without malice.

The new law amends Civil Code section 47 by taking it a few steps further. Now employees who have been victims of sexual assault are protected from being held liable for defaming their harasser if they report them to their employer. AB-2770 also provides employers with a safety net against defamation liability by allowing them to indicate during reference checks whether or not the decision to not rehire an employee is due to accusations of sexual harassment against that employee. Moreover, employers' subsequent communications to other "interested persons" during a sexual harassment investigation are also protected.

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