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Massachusetts Court Affirms Absolute Privilege in Employment Discrimination Claim

The Massachusetts Appeals Court has affirmed the principle of absolute privilege in connection with complaints of discrimination claims made to the human resources department and to the administrative agencies. Accordingly, the manager against whom the complaints were made could not countersue for libel, slander, malicious interference with advantagous business relations, or wrongful procurement of breach of employment agreement.

The underlying case was brought by a bartender, who had worked in a Marriott hotel in Cambridge, Massachusetts. After several months of working under a particular supervisor, she resigned. At the urging of a new manager at the hotel, she reapplied for the position. At her second interview for the position, she was interviewed only by her earlier supervisor, not, as she expected, by the supervisor and the manager. After the interview, she withdrew her application, and immediately complained that she had been harassed by the supervisor, and that he had behaved inappropriately.

The bartender followed up the verbal complaint with a written complaint to the general manager, to human resources, and to the legal department. She detailed her complaints against the supervisor for his harassment, and other complaints, and stated she would bring claims at the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination if her harassment claims were not promptly settled.

No settlement offer was forthcoming, so the bartender filed with the EEOC. The case was promptly settled with Marriott.

Almost a year later, the supervisor brought suit against the bartender and Marriott, claiming wrongful termination against Marriott as well as the defamation and tort claims against the bartender. The bartender’s summary judgment motion was denied, and the supervisor’s was allowed. The bartender appealed and the trial court was reversed.

The Massachusetts Appeals Court held that the letter to Marriott, in which the bartender threatened suit but offered settlement, was absolutely privileged since they related to the institution of a good faith judicial proceeding. The letter was, in fact, followed by the claim at the EEOC, based upon the same allegations. The court wrote, “Because her statements were made entirely in the confines of a protected forum, she is entitled to the defense of absolute privilege on [the defamation claims].” The exact same analysis applied to the claims of interference with employment relations.

The Lessons of This Case

Employers must understand that workers have the right to make good faith complaints. The duty on the employer is to undertake appropriate investigation and, where appropriate, corrective action.

The case is Visnick v. Caulfield, 73 Mass. App. Ct. 809 (2009)

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