Results Based HR Strategy

Employers Can’t Afford to Ignore Malicious Office Gossip

According to conventional wisdom, office gossip is an essentially harmless fixture of the workplace.  Employers often ignore gossip because it is so pervasive; and gossip21 300x300 Employers Cant Afford to Ignore Malicious Office Gossipmanagers, too, can get caught up in the chatter because everyone has a basic curiosity about people with whom they come in regular contact.  Although some forms of gossip may be innocent, there is no question that when gossip is malicious, it has crossed a dangerous line.  Malicious gossip destroys employees’ morale and productivity and exposes both individuals and employers to liability on several fronts.

Malicious Gossip – What is it?

Even though there may not be a strict legal definition of “malicious gossip,” employers should be aware of the characteristics that make gossip pernicious and that lead to the legal claims discussed below.  An employee who communicates information about another employee with the desire to inflict injury or harm on the other is engaging in malicious gossip.  The same is true of an employee who spreads rumors about a coworker’s personal or professional life that are untrue.

Why do people engage in malicious gossip?

Employees who traffic in malicious rumors and gossip are, in effect, workplace “bullies.”  Bullies behave in an aggressive, hurtful manner to compensate for feelings of inferiority, powerlessness and fear.  By denigrating others, the gossipmonger hopes to gain a sense of power and control over others.

What liability may result from malicious gossip?

Harassment under FEHA and Title VII

Malicious gossip may be actionable under laws protecting employees from workplace harassment.  Under the California Fair Employment and Housing Act (FEHA) and Title VII of the Civil Rights Act, a plaintiff may recover for workplace harassment if he or she were subjected to conduct based on plaintiff’s protected status, the conduct was unwelcome and the conduct was sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment.  (Cozzi v. County of Marin (N.D. Cal. 2011) 787 F. Supp. 2d 1047, 1069-70.)  Thus, for example, if an employee rejects the romantic advances of a coworker, and the coworker then repeatedly spreads false information in the workplace about the employee’s personal life, the employee may have a claim for sexual harassment.  Further, the coworker may be personally liable for harassment under FEHA, and the employer strictly liable if the coworker is a supervisor.  (Cal. Gov. Code 12940(j)(1), (3).)

Defamation

Malicious gossip in the workplace may lead to a claim for defamation.  To state a claim for defamation per se, the plaintiff must show the intentional publication of a statement of fact that is false, unprivileged and has a natural tendency to injure or which causes special damage.  (Reese v. Barton Healthcare Systems (E.D. Cal. 2010) 693 F. Supp. 2d 1170, 1188-89.)

Take, for example, a recent case in which a plaintiff alleged that she had been defamed when a coworker referred to her as a “pole dancer” while discussing plaintiff’s worker’s compensation claim with the third party claims administrator. The court held that plaintiff’s suit for defamation against her employer survived a motion for summary judgment. Because the coworker’s statement was made during the course of her employment, and was not privileged under California Civil Code section 47(c), the employer could be held liable for the statement under the doctrine of respondeat superior.  (Reese v. Barton Healthcare Systems, supra, 693 F. Supp. 2d 1170, 1191-92.)

Invasion of Privacy

Gossip in the workplace may give rise to the tort of invasion of privacy under the California Constitution.  To prevail, a plaintiff must show the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy; and (3) a serious invasion of the privacy interest.  (Hernandez v. Hillsides, Inc. (2009) 47 Cal. 4th 272, 287.)  For example, an employee who has access to confidential personnel records and who gossips with coworkers about the information in those records may be found to have invaded the privacy of those persons whose records were disclosed.

National Labor Relations Board Prohibits Restraint of Employees’ Discussion of Terms and Conditions of Employment

Notwithstanding the potential for liability inherent in workplace gossip, employers must refrain from issuing broad restrictions on employees’ work related gossip.  To comply with recent direction provided by the National Labor Relations Board on employees’ use of social media, employers generally may not prohibit employees from making disparaging remarks about the employer or a supervisor if the remarks are made in the course of “protected, concerted activity” with other coworkers concerning the terms and conditions of employment.  (See Office of the General Counsel, Memorandum OM 11-74 (August 18, 2011).)  Thus, it is permissible, for example, for employees to discuss, through social media, coworkers’ job performance and company staffing levels if done in preparation for a meeting with management to discuss working conditions.

Recommendations for Employers to Address Malicious Gossip

Workplace Policies and Practices

•   Seek the advice of legal counsel to craft a carefully drawn policy defining unacceptable gossip, and imposing discipline, including termination, for violation of the policy.  The policy should also include narrowly tailored parameters for the use of social media as it relates to the workplace, in compliance with NLRB dictates and First Amendment protections.

•   Encourage employees to vent frustrations in an appropriate manner.

•   Managers should model appropriate behavior by not engaging in gossip themselves.

Investigation

•   If gossip has crossed the line and may violate applicable policies or law, promptly initiate an investigation into the matter.

•   Interim measures should also immediately be instituted to prevent any further offending conduct while the matter is being investigated.

431ba9b8fb03f4558e82a9c6fad0e056 bpfull Employers Cant Afford to Ignore Malicious Office Gossip

About Elizabeth Ison, J.D. M.S.

Ms. Ison has been engaged in the private practice of employment law since her admission to the California State Bar in December 1988. Ms. Ison began her legal career with the law firm of Weintraub Genshlea Hardy Erich and Brown in December of 1988. In 1990, she became an associate with Weissburg and Aronson, which is now known as Foley & Lardner. In 1996, Ms. Ison opened her own practice in an effort to bring superior labor and employment law services to small- and mid-sized employers. She is admitted to the practice of law before all relevant courts. Ms. Ison defends employers in all forums, state and federal, civil and administrative with respect to employment law matters. She is a frequent lecturer and trainer on employment law topics and has published articles relating to the same in a variety of regional and national publications. Ms. Ison acts as an expert witness with respect to human resource compliance issues. Ms. Ison specializes in conducting neutral workplace investigations for the public and private sector employers.

2 comments


  1. Office gossip is not productive and inappropriate for the workplace, but based on the cases stated in this blog, thank goodness I don’t live or conduct business in California.

  2. Guey Sam /

    Dear Ms. Ison,

    I have been researching on the Internet whether merely gossiping about a co-worker dating another co-worker or who the co-worker is having or not having a personal friendship with another co-worker rises to the level of inappropriate conduct based on sex.

    In Chapter 9 (Sexual Harassment), at page 9, of the DFEH Case Analysis Manual (December 31, 2007), “Spreading rumors about another person’s sexual activities/conduct and/or partners” is listed as an example of behavior, which may be found to constitute unlawful sexual harassment. Also, in Morrison v. USPS, EEOC Appeal No. 07A50003 (April 18, 2006), the Equal Employment Opportunity Commission (EEOC) found that the Complainant was the victim of sex-based harassment as a result of incidents that included spreading rumors that the Complainant was “dating” a married co-worker. The EEOC’s reference to Morrison v. USPS may be found in “The DIGEST Of Equal Employment Opportunity Law,” Volume XVII, No. 3, which is located on the Internet at: http://www.eeoc.gov/federal/digest/xvii-3.cfm#14.

    Additioinally, in Martin J. Mulvihill v. The Top-Flite Golf Company, F/K/A/ Spalding Sports Worldwide, Inc., et. al.(July 2, 2003), 335 F3d 15; 203 U.S. App. Lexis 13440; 172 L.R.R.M. 3041;148 Lab. Cas. (CCH) P59, 761, the Court of Appeals for the 1st Circuit, held that there was substantial evidence in the summary judgment record that showed the employer (Spaulding) had proper cause to discharge Mulvihill (the employee) for violating the company’s sexual harassment policy. The Court said, “Common sense suggests that a reasonable person, aware of the (sexual harassment ) policy, could not have justified discussing the involvement of two coworkers in an extramarital affair (‘having an affair’) with a third-party member of the work force who had no legitimate interest in the subject matter.

    I would appreciate any comments or opinions you might have regarding this topic, and if you are aware of any California or 9th circuit court opinions about whether co-worker gossiping about another co-worker dating another co-worker rises to the level of inappropriate conduct or harassment based on sex. Thank you.

Trackbacks/Pingbacks

  1. 11 Tips For Conflict Resolution in the Workplace for Managers | HR C-Suite - [...]  Keep it private, don’t delay. A workplace drowning in gossip is an unproductive working environment. Have direct, one-on-one talks …

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>

This blog is monetized using Are-PayPal WP Plugin