What Privacy Protections Does an Employee Reporting Sexual Harassment Have in Oregon?
<p>Several discussions I’ve had recently about a series of events have made me wonder about some of the legal issues they raise.  I was fortunate not to be personally involved, and don’t need advice on how to proceed.  I’m primarily wondering about the legal position some of the people involved were in, and what advice they might have gotten, in order to better understand the decisions they made.</p>
<h2>(Not Quite) The Facts</h2>
<p>I’ve changed the details for this example, and cleaned up some of the ambiguities.  The real world is, as ever, less certain.</p>
<p>Alice, Bob, Carol and Della all work for Ethan at the Portland, Oregon branch office of a large company in the middle of the twenty-teens.  Alice is a superstar, could go anywhere, and periodically gets called away on big international projects.  She has a lot of influence, and Ethan couldn’t fire her even if he wanted to.  Right now, though, she reports to Bob.  Bob supervises many other people, including Carol and Della, who are fresh out of college.  Unlike Alice, they make almost nothing.  Bob basically has the power to make or break their careers.</p>
<p>Bob is smart enough to know not to mess with Alice.  But Carol confides to Alice that Bob’s been sexually harassing her and Della.  With Alice’s support, Carol then reports Bob.  A confidential investigation does not find that Bob broke any laws, but does show that he violated company policy.  (Later, people would find out that things were very serious, but Ethan didn’t know everything at the time.)  The morale and performance of Bob’s team suffers.  Ethan does not renew Bob’s contract when it runs out in a few months, which no one questions.  Alice transfers out anyway, and several other employees also leave.</p>
<p>Ethan sends a copy of the investigation to company headquarters.  However, in public, he thanks Bob for his services to the company and acts like he’s leaving on cordial terms.  Bob tells everyone that Alice is a diva, and that he wanted to move closer to his family.  Bob is hired by another branch of the same company.  He’s much more successful there, and becomes a rising star again.  Carol and Della are upset, but the company brushes them off, saying that Ethan already investigated their complaints to a conclusion.</p>
<p>Years later, all three women are finally ready to speak out on the record, and even more anonymously.  All of this and more comes out in the open.  It gives the company, which was already in the middle of other scandals, a black eye.  This time, Bob is immediately fired.   The CEO, Fiona, pretends she’s shocked at these new allegations she’s never heard before, but Alice has the e-mails that prove Fiona is lying.  The board fires Fiona.</p>
<p>Assume that each of these people (except possibly Carol and Della) would count as a public figure in a defamation suit.</p>
<h2>What I Most Want to Know</h2>
<p>Right now, I would especially like to understand the position Ethan was in.  Clearly there were better ways for him to have handled this, but was there a good way to publicly shame Bob, and prevent him from getting his next job, without breaking Carol’s confidence?  (I’m not asking whether someone could warn about him through the grapevine.  Someone might have.)</p>
<p>Trying to find an answer to this has raised other directly-related issues, about which I’ve heard contradictory or confusing answers.</p>
<h2>Could Bob Sue Over a Public Warning?</h2>
<p>In particular, someone suggested to me that the company could have released a statement saying, “After an investigation of Bob for unprofessional conduct, his contract was not renewed,”  This sentence is literally true, although it conveys the clear implication to me that Bob is guilty and it would have also stopped Bob from getting lucrative job offers.</p>
<p>Could there have been grounds for a lawsuit?  Perhaps alleging defamation by implication, perhaps alleging that the so-called investigation had been a sham, perhaps alleging that Alice was the source of these accusations in order to sabotage his career?</p>
<p>Despite having had people tell me that it’s impossible, I have seen cases in the same jurisdiction of employers getting sued for statements similar to that, and having to settle the case.  It’s possible those cases turned on details I don’t fully appreciate.</p>
<h4>ETA:</h4>
<p>It turns out that Ethan quietly suspended Bob, during some downtime, and kept that a secret.  He also warned Bob’s next employer that there had been an investigation, but apparently no more than that.</p>
<p>Wouldn’t <a href="https://oregon.public.law/statutes/ors_30.178" rel="nofollow noreferrer">ORS 30.178</a> also have protected Ethan?</p>
<h2>Would a Lawsuit from Bob be Dangerous?</h2>
<p>The company did have statements from witnesses, and revealing them would only have made Bob look worse, but the witnesses had good reasons not to want to come forward or to testify.  Bob did not necessarily know this.  Carol and Della were both too poor to pay any damages anyway, but he didn’t necessarily know which women told on him, either.</p>
<p>I’ve heard the assertion that such a suit would have been dismissed before getting to discovery, or even fall under Oregon’s anti-SLAPP law.  I’m skeptical.  Would a truth defense for a statement such as, “We completed an investigation of Bob for professional misconduct,” require disclosing the investigation?  Would a defense that the investigation gave them legitimate reasons to believe that the insinuation they made is true require them to disclose it?  Are there other good defenses that could have gotten the lawsuit dismissed as frivolous?</p>
<h2>Would Defending the Lawsuit have Exposed Carol?</h2>
<p>Would the identities of the witnesses have been redacted?  At least from the public record, even if Bob could easily have figured it out?  Could his accusers have been compelled to testify?  Would the testimony of the interviewer be enough to establish the validity of the investigation?</p>
<p>If Alice had made a public accusation, directly or by implication, could she have defended herself in court without naming the witness who informed her?</p>
<h2>The Bottom Line</h2>
<p>Is it credible that Ethan had a good legal reason to keep this “in the family” for Carol’s sake?</p>

<blockquote>
<p>was there a good way to publicly shame Bob, and prevent him from getting his next job, without breaking Carol’s confidence?</p>
</blockquote>
<p>Apparently not. The conclusion that Bob's violations of company policy are short of breaking any laws leaves little to no reason for publicly shaming him. Details on the company policy, the facts, and the statements <em>might</em> make a difference, but your description is generic in that regard and would require us to speculate on what they could be.</p>
<blockquote>
<p>Could there have been grounds for a lawsuit?</p>
</blockquote>
<p>It largely depends on the terms of the publications, their veracity &amp; import, and --if false or unfounded-- their effect on Bob's prospects and/or whether the statements are defamatory per se.</p>
<blockquote>
<p>Would a truth defense for a statement such as, “We completed an investigation of Bob for professional misconduct,” require disclosing the investigation?</p>
</blockquote>
<p>Yes. A defendant has the burden to prove the [affirmative] defense(s) on which he intends to premise his position.</p>
<p>Note that the statement “<em>We completed an investigation of Bob for professional misconduct</em>” in and of itself is not really a <em>truth</em> defense because it is inconclusive as to whether Bob was found to have incurred misconduct. The sole fact that Bob was investigated does not justify imputing to him disreputable conduct.</p>
<blockquote>
<p>Would a defense that the investigation gave them legitimate reasons to believe that the insinuation they made is true require them to disclose it?</p>
</blockquote>
<p>Yes. Bob is entitled to gather from the defendant the bases for the latter's allegations. Otherwise defamers would systematically elude their liability by sticking to generic allegations only.</p>
<blockquote>
<p>Are there other good defenses that could have gotten the lawsuit dismissed as frivolous?</p>
</blockquote>
<p>That requires us to speculate because we are given no details about the underlying events, Bob's pleadings, the evidence obtained during discovery, and so forth.</p>
<p>That being said, a prevailing defense does not imply that the lawsuit is frivolous.</p>
<blockquote>
<p>Would the identities of the witnesses have been redacted?</p>
</blockquote>
<p>No. The fact that Bob did not break any laws suggests that the matter does not warrant measures akin to witness protection. Nor does your description reflect that the communications are protected by some privilege.</p>
<blockquote>
<p>Is it credible that Ethan had a good legal reason to keep this “in the family” for Carol’s sake?</p>
</blockquote>
<p>That is unanswerable because, <em>inter alia</em>, it is not about the law, it is unclear what exactly &quot;Carol's sake&quot; entails, and the substance of the company's other scandals as well as Ethan's reason(s) are unspecified. Ethan's &quot;<em>good legal reason</em>&quot; does not necessarily have to protect or advance &quot;<em>Carol's sake</em>&quot;.</p>

united-states employment defamation harassment oregon