The Intersection of Defamation and Discrimination: A Legal Analysis

In New York workplaces, a troubling pattern has developed where people accused of sexual harassment are increasingly fighting back by suing their accusers for defamation, claiming that the accusations have caused damage to their reputation. When someone reports sexual harassment at work, the accused person sometimes responds by filing a lawsuit claiming the accusations were lies that hurt their reputation, which can scare victims into silence. Claiming a case of defamation attempts to silence the victims through a lengthy process of litigation, with costly proceedings for months to come.

However, New York law offers strong protections for people who report harassment, including “qualified privilege”—established in court cases such as Sagaille v. Carrega and Herlihy v. Metropolitan Museum of Art—which means people generally can’t be sued for defamation when they report harassment through proper workplace channels or legal processes, as long as they’re acting in good faith. Recent changes to the law, including the federal Speak Out Act and updates to New York’s anti-discrimination laws, have made it easier for harassment victims to speak up by changing the rules around settlement agreements and adjusting what victims need to prove when bringing harassment claims. If you’ve experienced harassment, the law is increasingly on your side when you report it.

This report explains how these lawsuits are often used to intimidate victims into silence and what legal safeguards exist for those willing to speak up.

The Fundamentals of Defamation

To successfully litigate these issues, one must understand the elements of defamation and the robust privileges that protect reporters from liability for reporting misconduct. In New York, a plaintiff must prove the following elements: a statement that is false purporting to be a fact, communication of said statement to a third party, fault amounting to at least negligence, and damages caused to the person who is subject to the aforementioned statement.

The Shield of “Qualified Privilege”

The strongest legal protection for employees who report harassment is called “qualified privilege”. This is a defense for when statements are made in good faith, and typically have a shared duty or responsibility between the speaker and receiver. An example of this would be centered around performance reviews or providing references. 

A 2021 NY court case, Sagaille v. Carrega, strengthened this protection. The court ruled that when someone reports sexual assault to the police, those statements are protected by qualified privilege. Importantly, the court made clear that just because someone makes a serious accusation doesn’t automatically mean they acted with bad intentions. This ensures that victims can come forward without immediately facing the risk of being sued simply for reporting what happened to them.

To overcome this protection, the person claiming defamation must prove “actual malice”—meaning they must show that the accuser either knew their statement was false or showed reckless disregard for whether it was true or false.

The Weaponization of Defamation in Employment Disputes

Discrimination and defamation cases often clash in troubling ways. After the #MeToo movement gained momentum, a pattern emerged: people accused of misconduct began suing their accusers for defamation. Advocacy groups have raised concerns that this tactic is designed to silence their victims by forcing them to endure the high costs and emotional strain of a lawsuit—an approach sometimes called “process as punishment.”

For defamation attorneys in New York, these cases frequently hinge on whether retaliation has occurred. Federal law (enforced by the EEOC) and New York State Human Rights Law strictly forbid retaliation against employees. Courts are increasingly recognizing that when someone files a meritless defamation lawsuit against an employee who has reported harassment or engaged in other protected workplace activities, that lawsuit itself may be illegal retaliation. If workers become afraid to report ongoing sexual harassment because they fear being sued for defamation, the fundamental protections that civil rights laws are meant to provide essentially break down.

Herlihy vs. Metropolitan Museum of Art

To look at a critical example of a case involving defamation and discrimination within New York State history, let’s look at the summary of Herlihy v. Metropolitan Museum of Art. It highlights that while the law protects reporters from harassment, that protection relies heavily on the “good faith” of the reporter.

A 72-year-old museum coordinator, Cecile Herlihy, was fired after three Jewish volunteers she supervised reported that she made anti-Semitic comments to them. She denies making these statements and is suing both the museum and the volunteers. What allegedly happened was that the three volunteers (Ruth Zalinka, Sandra Ortner, and Judith Strone) told museum officials that Herlihy said things like, “You Jews are such liars”, “You Jews are all alike”, and other offensive terms. The plaintiff denies that she said such quotes and claims that she was simply asking about the dates for the Jewish New Year to adjust the volunteers’ work schedules. The plaintiff claims the volunteers made false reports to retaliate against her. This was due allegedly for critiquing them in the past about their job performance.

While the volunteers would argue that they were making arguments out of good faith to the Museum officials, the plaintiff claimed that they made the accusations out of malice and disregarded the truth of the matter to get the plaintiff fired. The court did allow for this case to proceed to a full trial. Because Herlihy presented a plausible narrative (the prior demands), the court could not grant the volunteers immunity without a fact-checker determining who was telling the truth.

Based on both the federal law of Title VII and the Civil Rights Act provisions 42 USC §§ 2000a-2, 2000e-3, as well as New York State’s Human Rights Law, these laws require a “reasonable belief” that discrimination occurred, and that they do not protect people who knowingly make false accusations. This case should be seen as a critical lesson for New Yorkers, that qualified privilege is a shield, and not some kind of magic wand. While the law protects those who report discrimination on a reasonable belief, the valid accusations of malice can pierce that shield. It highlights the importance of consistency when reporting harassment in the workplace.

Legislative Reforms and Defamation Protections

Recent legislation has strengthened protections for harassment victims against retaliatory defamation lawsuits.

Anti-SLAPP Protections New York’s expanded Anti-SLAPP laws now cover communications on matters of “public interest,” including workplace discrimination. If a defendant demonstrates their speech is protected, the burden shifts to the plaintiff to prove a “substantial basis” for their claim. Dismissal under this statute triggers mandatory attorney’s fees, acting as a deterrent against retaliatory litigation.

The Speak Out Act and Settlements The federal Speak Out Act renders pre-dispute NDAs unenforceable in sexual harassment instances. Furthermore, NY General Obligations Law § 5-336 prohibits settlements from including liquidated damages for NDA violations or requiring victims to falsely state they were not discriminated against.

Evidence and Standards Since truth is an absolute defense to defamation, proving harassment is vital. The NYSHRL standard has lowered from “severe or pervasive” to conduct rising above “petty slights or trivial inconveniences.” This makes establishing the factual “truth” of an accusation easier. Courts consider the totality of the circumstances and evidence of “prompt outcry.”

Statute of Limitations Strategy

A critical strategic disparity exists:

• Defamation: Strict one-year statute of limitations.
• Discrimination: Extended to three years for filings with the NY State Division of Human Rights.

This allows victims to file discrimination claims after the defamation window has closed, effectively preventing accused parties from filing retaliatory countersuits based on the original complaint.

Conclusion

While defamation suits often challenge discrimination claims, there is good news! New York law provides robust safeguards—like Anti-SLAPP statutes and the “common interest” privilege—that empower individuals to speak out safely. By leveraging these key protections, attorneys can confidently shield their clients and champion the path to workplace justice.

Call a New York Employment Law Attorney Now

We at Filippatos PLLC stand in proud solidarity with any and all workers facing discrimination in the workplace. We believe that all people deserve the right to exist freely, no matter who they love, how they express their gender, practice their religion, or celebrate their heritage. If you are experiencing discrimination at work, please give us a call at 888-9-JOBLAW for a free consultation. We will do our utmost to help secure you the justice you deserve.