Employer acting hostile towards employee

When Are False Accusations of Racism Defamation?

By Douglas Lipsky

The ongoing protests against racism across the nation in the wake of George Floyd’s death have also sparked concerns about false accusations of racism, and whether such accusations are considered defamation. If your professional reputation has been harmed by false accusations, it takes a skilled employment lawyer to protect you from defamation.

What is defamation?

Defamation occurs when an individual’s character or reputation is harmed as a result of a false statement of fact that is made public. Generally, there are two forms of defamation: slander, which is spoken, and libel, which is written. Defamation in the workplace may arise when a current or former employee’s character, reputation, or career is harmed by a co-worker’s false accusation. 

While any number of disparaging statements can be made about someone, defamatory statements are those deemed so damaging to the person’s reputation that proof of harm may be unnecessary to have a valid claim. 

In legal terminology, such statements are considered defamation per se and are limited to:

  • Accusing someone of committing a crime
  • Impugning an individual’s ability in his or her occupation or profession
  • Making false statements about a person’s ethics or integrity in his or her employment or profession
  • Having a sexually transmitted disease
  • Committing adultery or fornication

Racist or discriminatory comments may also be considered damaging by nature. As an example, making derogatory comments about someone’s work ethic based on their race or gender may be a case of defamation.

When it comes to false accusations of racism, however, the case is not so clear. The courts have weighed in to the effect that a general statement that one is racist, without further proof of injury, is mere name-calling that is not actionable. Generally, the line of reasoning is that accusations of racism are no longer obviously harmful because the word “racist” has been watered down by overuse in public discourse. 

Moreover, while defamation in the workplace involves false statements about an employee’s reputation, mere opinion does not constitute defamation. To have a valid claim for defamation, it is necessary to prove the following elements:

  • False Statement about the target was stated as fact (not opinion)
  • Publication or communication of that statement to a third person
  • Fault on the part of the person making the statement amounting at least to negligence
  • Harm to the subject of the statement (damages)

Given the challenges and potential repercussions of filing a workplace defamation claim, it is crucial to consult with an experienced New York City employment law attorney.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.