Employee Rights and Employment Policy Journal
| Volume 1 | 1997 | Number 1 |
DISCHARGE AND DISGRACE: A COMMENT ON THE "URGE TO TREAT PEOPLE AS OBJECTS"
MATTHEW W. FINKIN*
The law of defamation governs the dissemination of an injurious
falsehood, and privacy the dissemination of an injurious private fact.
The truth of the matter is a defense in the former; it is an element of
the latter. But in both instances the dissemination is subject to the
same qualified privilege
In recent years, however, better to enforce employer disciplinary
rules, the courts in some states have expanded the scope of disclosure
of employee misconduct to include the entire complement of the
plant, store or office workforce. This development, which has passed
largely without comment, not only works a change in the common
law, it questions as well a fundamental precept of liberal thought that,
as George Kateb has observed, extends from Kant (at least) through
major theorists of the nineteenth century Ï the need to block "the
urge to treat people as objects."
I. A CENTURY OF LAW
There seems to be a good deal of confusion, some longstanding, of just what American courts considered to be acceptable (and [P.2] unac- ceptable) dissemination of the facts concerning an employee's dis-charge. Examination of that question usefully proceeds by reference to an English precedent.On July 1, 1889, the Great Northern Railway posted a circular in
all the rooms allotted for the use of its employees (to which, however,
the general public had no access) stating that an employee, one Eric
Hunt, had been discharged for gross neglect of duty.
- How can it be doubted that when a railway company has dismissed
a servant for conduct which has resulted in damage to the company,
it is to the interest of the company to inform their other servants that such conduct
has been punished by dismissal? And how can it be said that the servants have not a corresponding
interest in learn-ing that certain conduct will be followed by dismissal? I cannot im-agine
a case in which the reciprocal interest would be more clear.
However, Lord Esher stressed that the question of whether the com-pany
had abused the privilege had not been presented; all the court
below had decided, and all this court affirmed, was "that the occasion
had risen for the defendants to do what they did -- not that they had
used the occasion rightly."
Fifteen years later, an American annotation observed that it was
the "uniform" holding that the circulation of such notices about "the
person to whom they relate" by employers to the workforce "indis-criminately"
was privileged;
In fact, American courts were at considerable pains to cabin the disclosure of misconduct to: (1) the relatively small circle of those co-workers personally known to the plaintiff (and for whom the work-place was as much a social as a business setting); (2) to those co-work-ers potentially involved in the event or transaction giving rise to the discharge; and, (3) to those otherwise specially so situated as to be able to conclude that they had a legitimate need to know. The first two require no elaboration. The last does.
The practice of American railroading had been to circulate lists of
discharged employees to station agents elsewhere in the system who,
in the decentralized managerial structure, had the authority to hire
and fire Ï to prevent the hiring elsewhere in the system of a worker
who had been discharged for incompetence or wrongdoing. The cir-culation
of lists to those persons for that purpose was held to be privi-leged.
It has been argued that it was inherent in the very logic of the calculus of qualified privilege for it inexorably to expand the scope of permissible disclosure. Whether or not that is so will be discussed presently, but the passage is worth noting in full for it is historically quite wrong:
- Courts [by the end of the century] tried to "contain" the extension of the privilege, but given larger and more dispersed groups, the
boundaries of the privileged situations kept slipping away. Newspa-per publication was often held to be a sensible means to warn the
public of a dismissed agent, even though the communication would be read by others who were not prospective employers. In one case,
a railroad agent retained and sold tickets after he was fired. The railroad posted a notice of the conductor's dismissal on an em-ployee's
bulletin board rather than directing it to ticket agents, the only persons who were actually affected. It was held to be privi-leged
nonetheless [citing Sheftall v. Central of Ga. Ry. Co., 51 S. E. 646 (Ga. 1905)]. The newspaper and bulletin board are perfect ex-amples
of the pressure in a market society to circulate decontextual-ized information. While defamation law checks this tendency,
privilege fosters it.
No case is referenced in which the public at large was "warned"
of a dismissed employee by publication in a newspaper.
W. C. Sheftall was dismissed as a conductor and, according to his pleadings, the railroad circularized the fact of his dismissal for "scalp-ing" tickets; the ticket numbers were supplied with notice that these should be dishonored and, if possible, collected and sent on to the company. The bulletin was sent to conductors and sleeping car por-ters to whom these tickets might be tendered; but, he alleged, the bul-letin was also posted in public places in the company's offices in several cities to which the general public might have resort, and where all employees, whether conductors or not, were required to examine them. The company denied certain of the facts and pleaded privilege. The jury found for the railroad.
Before reaching the Georgia Supreme Court's disposition, it
should be noted that in railroading of the period, conductors (and
some other employees) had considerable authority in the matter of
ticketing; whence the use of railroad "spotters" and Pinkerton agents
to observe or test the honesty of these employees.
This, then, was the "gist" of Mr. Sheftall's case: His right to recover
- is upon the claim that this communication, privileged as to one class of employ³ es, was published to another class of employ³ es, when the
right to publish to them was not embraced within the privilege of the law, or that it was published to others than employ³ es, and that
the publication was either intentional, or it was due to negligence in the manner of publication to proper employes.
And this, the court held, was "such a vital issue in the case that the
plaintiff was entitled to a clear and specific instruction on the subject, even though
no written request was made therefor."
For the most part, the exacting care taken by the Sheftall court
continued to characterize the law for the next eighty years.
- That interest, as described by defendant's representatives, was to restore morale in the plant protection force and to quiet rumors that
were circulating among its members, adversely affecting the com-pany. These men were not supervisors, personnel department rep-resentatives,
nor company officials. They were simply fellow employees in the identical work. No privilege extended to the com-munication
to them and the trial court properly so held.
This is not necessarily to argue that the case was correctly decided
under the special circumstances presented, of the much rumored-about
discharge of a publicly prominent co-worker.
A sea change, if such it proves to be, was signaled by the United
States Court of Appeals for the Fifth Circuit in 1987, concerning the
policy of disciplinary disclosure used by the DuPont company. Unlike Hunt v. The Great Northern Ry. Co., the discharged em-ployee
had not been named in the company circular; but, also unlike Hunt,
rather little was made to turn on that distinction inasmuch as
subsequent inquiries of or statements made by supervisors in response
to the circular identified Garziano as the object of the lesson. In these and the cases about to be reviewed, the use of the name vel non
would be irrelevant inasmuch as they all concern a dissemina-tion
to the workforce of the single plant, office or store and not on a
company-wide basis. I. e., the use of the dismissed employee's name in
a circular posted at other geographically-dispersed facilities scarcely
puts a face on an otherwise anonymous object, but an announcement
of an ostensibly anonymous discharge at this facility virtually invites
inquiry of who the object is. The reasoning of the Garziano court has been applied more
widely. In 1989, the Supreme Court of Wisconsin held as a matter of
law that a company could include the reason for a named employee's
discharge, i. e. for lying on his employment application, in its newslet-ter
circulated to the plant's 160 employees. "[A]n employer," the
court opined, "has an interest in maintaining morale and quieting ru-mors
which may disrupt business." In 1990, the Supreme Court of Minnesota held it permissible for a
company to assemble all the employees of a retail shoe store to inform
[P.12]them that three employees were to be fired for theft. In 1991, the North Carolina Court of Appeals held that a com-pany
was privileged to distribute a "talk sheet" to its entire workforce
at two plants, informing them that a worker at one of the plants had
been dismissed for suspected drug use. In 1992, the Oregon Court of Appeals considered an employer's
announcement to all sixty of its employees that the plaintiff had been
discharged for "chronic performance failure." In 1994, the Supreme Court of Indiana held that the company's
circulation to 1,500 plant employees that a warehouseman had been
dismissed for theft was privileged in order for the Company to com-municate
its "core values" and to improve "employee productivity
and morale." Curiously, Garziano was not mentioned in any of these cases. In-stead
of relying on it, even as the ostensibly "leading authority," the
courts chose to misrepresent the antecedent body of law on point,
sometimes by eliding critical treatment, or to ignore it altogether.
This is a serious allegation, if one expects faithfulness to precedent,
care in distinguishing precedent, or reasoned explication for a depar-ture
from precedent as a judicial obligation under the common law, The Wisconsin Supreme Court relied upon three decisions to evi-dence
the conventional proposition that a conditional privilege ex-tends
to communications made between employers and "persons
[P.14]having a common interest in the employee's conduct." The Oregon Court of Appeals relied upon a case that would seem
to bear directly on the issue presented: the propriety of an employer's
announcing the reasons for discharge to its assembled workforce. Yet the Oregon Court of Appeals cited the case for the proposition
that an employer's qualified privilege extends to statements made "to
protect employee morale" in order to take the issue of excessive pub-lication away
from the jury. Neglect. The North Carolina, Ohio and Indiana courts cite no
precedent at all. They proceed as if the privilege's scope is so obvious
that it can be disposed of without need for any reflection upon a cen-tury's
texture of considered judgment.
The latter cases in particular might be taken to confirm the thesis,
adverted to earlier, that the calculus of qualified privilege drives it
ever to expand the scope of permissible disclosure, that the bounda-ries
necessarily keep "slipping away" As for doctrinal inexorability, it is true that the determination of
whether a communication was or was not privileged moved away from
an assessment of the speaker's duty to disclose, founded in moral or
social obligation, toward the speaker's interest in disclosure, founded
in an economic calculus, It is well now to consider the reasons relied upon to sustain the
broadened privilege. The Garziano court thought the company could
believe it was under a legal duty to disclose the discharge as in aid of
its obligation to enforce federal law against sexual harassment. But
nothing in the regulations of the Equal Employment Opportunity
Commission relied on there The primary and recurring rationale in these cases is the need to
maintain employee morale, efficiency, and discipline, in all of which
the interests of the employee-recipients are said to coincide with the
interests of the employer-speaker. The latter is an important element
in sustaining the privilege, at least in a strong form, for speech uttered
where there is a mutuality of interest is likely to be more defensible,
as socially necessary or useful, than that uttered in the speaker's self
interest alone. But as the Supreme Court of Michigan concluded in
1964, "Morale" has at least two meanings. Its primary ordinary usage,
usually conjoined with an adjective -- "high," "good" -- implies a
positive mental attitude, of buoyancy and self-confidence; and it [P.17]can-
not be doubted that communications made to foster such feelings
might well be to the interest of both employee and employer, as con-ducing
toward greater job satisfaction and so of productivity. But it is
dubious that a worker's feelings of well being are buoyed by being
made to witness the discharge of another worker for theft or by being
given written notice that an employee had been discharged for
deception.
A related claim under this heading is the employer's need to dis-pel
rumors of wrongful treatment by demonstrating a valid reason for
its action, to bolster "morale" by assuring employees that it had not
acted arbitrarily. The elements of this claim have to be unpacked to
be assessed.
In a unionized workplace, union officials are entitled to be given
the reasons for an employee's discharge and, if the employee protests,
they may pursue the discharge as a grievance. Where there is no set-tlement,
the union most often can take the dispute to arbitration; and
the union's refusal to arbitrate may be appealed through the union's
processes or litigated as a breach of the duty of fair representation. In
other words, in most unionized settings the discharged employee is
able to seek relief from arbitrary employer action. If she does, the
reasons for the employer's action will be disclosed to those having a
valid need to know; Most employers are not unionized, however. In the main, em-ployers
have tended to resist efforts at unionization that would subject
discharge decisions to systems of grievance arbitration, and to resist as
well any erosion of the "at-will" employment rule that allows them
legally to discharge for any reason or no reason at all -- that is, arbi-trarily,
even to the inclusion of disclaimers in employee policies and
handbooks that the employer is contractually bound by any provision
for progressive discipline or fair treatment these documents might
[P.18]
otherwise have assured. Thus the claim in the non-union setting is
that an employer must be able to explain its reasons for a particular
discharge in order to quell employee suspicion that it had acted in
accordance with the very power it has striven legally to reserve. Here,
too, the interest is the speaker's, not the listener's.
Accordingly, analysis turns to the second, military meaning of
"morale." This usage also speaks of a mental condition, of a willing
submission to discipline. It is in this sense that the courts speak of the
employees' interest in knowing not only what the disciplinary rules
are, but that they are actually enforced. The assumption is that
merely informing employees what the rules are, that, for example, the
Company will not tolerate sexual harassment or theft, does not convey
or, at least, does not so nearly effectively convey them as announcing
an actual discharge under them. (Consequently, when a genuine ob-ject
for the lesson is unavailable, an imitation can be supplied com-mercially. Put this way, the company's use of shame could be argued to take
on a larger, moral significance that transcends its narrow self-interest.
When a company does more than discharge a thief, but announces
that it has done so, the announcement carries with it important social
consequences. This may be something of what Gertrude Himmelfarb
had in mind when she wrote of the function of civil society -- "to
encourage moral behavior and discourage Ï which is to say, stigma-tize
-- immoral behavior. The mechanisms of approbation and disap-probation
are all the more necessary in a liberal society, for the more
effective the social sanctions, the less need there is for the legal and
penal sanctions of the state." The argument is not without intrinsic difficulty, as the very exam-ple
of sexual harassment may illustrate. Some conduct proscribed
under that head is odious, even repellant; but, as Himmelfarb ob-serves
elsewhere, some of what is proscribed under that head amounts
to a kind of "moral correctness" enforced by institutional Mrs.
Grundys "vigilantly supervising the proprieties of conduct and
speech." Moreover, it seems one thing for a company to discharge for a
rule violation, but quite another for it to claim that its corporate or
even social values authorize it publicly to announce (and so tacitly
condemn) the discharged employee, for it remains to be seen what the
consequences to corporations are once they are permitted to justify
that action on morally propaedeutic grounds. I. e., if a corporation as-sumes
the public role of moral preceptor in effecting discharges from
employment, then it must be taken to have found less morally culpa-ble
those whom it discharges discretely, without public condemnation,
or whose resignations are solicited on condition of confidentiality.
[P.20]Once, that is, the role of public moral preceptor is assumed, there
would seem to be no middle ground; and its failure to treat cases of
equal moral repugnance alike would quite properly be taken as evi-dence
of actual malice so to defeat any claim of privilege.
Apart from these intrinsic difficulties, the analogy of a breach of
corporate rules of conduct to a transgression against civil society, to
justify the use of shame as a sanction, seems difficult to sustain. A
criminal conviction, a public act that inherently shames the guilty, Interestingly, consent (albeit individual and not political or col-lective)
is the one argument that has not been assayed, though it
would seem readily available to employers merely by the expedient of
providing for such in employee-acknowledged provisions of company
policy manuals or employee handbooks. It could be argued that an employee who really had stolen, lied,
or sexually harassed would have forfeited any claim to be worthy of
respect. By this reasoning, only truth, not qualified privilege, should
be allowed as a defense. There is reason to be wary even here. For the law to concede
such authority, even under this limitation, is to attach social (and, per-haps,
moral) approval to its exercise. Thus it would conduce toward
the legitimation of a series of "next steps," where each dignity-depriv-ing
action, taken in business interest, In sum, the exercise of the power to treat people as objects for
corporate purposes tends to accustom us to being put to such use.
And having conceded the principle, we have weakened the principled
ground to complain of its extension. We best avoid those ends by
avoiding this beginning.
*ALBERT J. HARNO PROFESSOR OF LAW, THE UNIVERSITY OF ILLINOIS COLLEGE OF LAW. ON THIS, AS ON SO MANY OTHER OCCASIONS, I AM INDEBTED TO CLYDE SUMMERS FOR
GIVING SO GENEROUSLY OF HIS TIME AND CRITICISM. THE VIEWS EXPRESSED AS WELL AS ANY
ERRORS ARE MY OWN.
1. See, e. g., Zinda v. Louisiana Pac. Corp., 440 N. W. 2d 548, 556 (Wis. 1989); Hines v. Ar-kansas La. Gas Co., 613 So. 2d 646, 658 (La. App. 1993).
2. GEORGE KATEB, THE INNER OCEAN: INDIVIDUALISM AND DEMOCRATIC CULTURE 230 (1992).
3. Hunt v. The Great Northern Ry. Co. [1891] 2 Q. B. 498. The fuller report is provided in 55 J. P. 648 (Oct. 10, 1891).
4. He had obtained judgment for wrongful dismissal and it was admitted by the company at trial that Hunt had not been negligent. Hunt v. The Great Northern Ry. Co., 55 J. P. 234
(April 11, 1891).
5. Id., 55 J. P. at 648.
6. Id. I am indebted to Mark Freedland for bringing this point more clearly to my attention.
7. Id., per Lopes L. J.:
8. 4 L. R. A. (N. S.) 1121 (1906):
Another kind of "black list" is that which employers who hire large numbers of servants circulate either among all their servants indiscriminately or among such superior employees as
are invested with authority to engage and discharge subordinate servants. The right to publish such a document has so far been tested only in actions for libel, and it has uniformly been held
that the privilege of the occasion is prima facie an effectual bar to a claim for damages based on this ground.
9. 5 C. B. LABATT, COMMENTARIES ON THE LAW O F MASTER AND SERVANT º 2030 at 6298 (2d ed. 1913). Labatt explained that, to bring the treatise out early, parts of it were credited to
others, including the editorial staff of the Lawyers Co-operative Publishing Company. Id. at xi. They had prepared the prior annotation.
10. The annotation (and the treatise) set out five American cases, all involving railroads. Three of the cases concerned the practice in railroading periodically to print lists of discharged
employees and the reason for the discharge Ï e. g. "theft," "incompetence," "insolence," or "drunkenness" Ï and to circulate these to the company's agents with authority to hire through-out
the system. One of these cases is not on point, for it concerned whether the railroad's failure to correct an error amounted to malice. Missouri Pac. Ry. Co. v. Behee, 21 S. W. 384 (Tex. Civ.
App. 1893). But the other two are on point, and they stress the limited nature of the communi-cation in order to sustain the privilege: Bacon v. Michigan Cent. R. Co., 33 N. W. 181 (Mich.
1887):
Id. at 184 (emphasis added).
Missouri Pac. Ry. Co. v. Richmond, 11 S. W. 555 (Tex. 1889):
Id. at 557 (emphasis added).
The fourth case concerned the railroad practice of the period in providing a discharged em-ployee with a "service card" stating the reason for the employee's discharge. In the event, the
card stated, "Dismissed; insolent and abusive to company's patrons." Hebner v. Great N. Ry. Co., 80 N. W. 1128 (Minn. 1899). The challenged disclosure was to the clerks who processed the
service cards and about which the court opined:
Id. at 1129 (emphases added).
In the fifth and last case cited, Brown v. Norfolk & W. Ry. Co., 42 S. E. 664 (Va. 1902), the railroad superintendent investigated an allegation by an official of the company that he, the
official, had been defamed by an employee's public utterances to other employees. The investi-gation sustained the official's account and the employee was discharged, the superintendent issu-ing
an order that an unnamed employee had been dismissed for that conduct. The court sustained the privileged nature of the order, as motivated by the company's desire "to promote
the efficiency of its service, and to give necessary information to its employes." Id. at 665. But it does not appear from the decision who the recipients of the order were, the focus of the opinion
being on the issue of actual malice; and the case is distinguishable insofar as the superintendent's statement was made in consequence of an investigation into the discharged employee's allega-tions
against a company official.
The 1913 treatise did not supplement the cases compiled in 1906. But had it done so, it
would have found the same attentiveness that contradicts its statement of the rule that employ-ees "indiscriminately" could be informed of the reasons for a worker's discharge. See, e. g.,
Ramsdell v. Pennsylvania R. Co., 75 A. 444 (N. J. 1910), in which a dining car conductor, who had had authority for the issuance of meal tickets, was discharged and a notice posted in the
railroad's commissary stating that the discharge was for dereliction in the handling of these tick-ets. The commissary was frequented by dining car conductors and other employees; the former,
however, were requested to sign the posted notice to acknowledge that they had read it. The dissemination of the notice to the dining car conductors was sustained as bearing upon the per-formance
of their duties; but the court held that evidence had wrongly been excluded that em-ployees of other departments were "exposed" to the notices which, if proven, would defeat the
privilege.
11. 4 L. R. A. (N. S.) at 1121-1122:
12. See, cases set out in supra note 10. It has been argued of one of these cases, Missouri
Pac. Ry. Co. v. Behee, 21 S. W. 384 (Tex. Civ. App. 1893), that, "The court held these lists were privileged even though they were sent to hundreds of agents who were not prospective employ-ers
of those listed." M. M. Slaughter, The Development of Common Law Defamation Privileges: From Communitarian Society to Market Society, 14 CARDOZO L. REV. 351, 383 (1992). That is
not accurate. Given the company's decentralized hiring authority, each of these agents "had
charge of the employing and discharging of its employees." Behee, 21 S. W. at 385. Each was, in a sense, a prospective employer, i. e. had the authority to hire on the employer's behalf.
13. Slaughter, supra note 12, at 383.
14. Such cases there are. In Howe Machine Co. v. Souder, 58 Ga. 64 (1877), the company published a notice in the Columbus (Ga) Inquirer that an unnamed former employee, a "con-temptuously
unreliable, indolent and dishonest fellow" had given an erroneous impression that the company was discontinuing its business in Columbus, which misrepresentation the company
sought to correct. Id. at 66. The jury's judgment for the plaintiff was affirmed. Compare Razel v. New York News Pub. Co., 73 N. Y. S. 849 (App. Div. 1902) (publication in the defendant newspa-per
that the newspaper's former employee was no longer employed by it and had no further connection with the paper was held to be inactionable, not on grounds of privilege but on the
want of any defamatory content) with Behre v. National Cash-Register Co., 27 S. E. 986, 986-87 (Ga. 1897) (notice in newspaper that former employee was "no longer connected" with the com-pany
was factually true, but the addition of a warning that "any contracts made by him for the company will be void" was capable of having a defamatory content, citing California authority).
The Razel court did observe in dictum that informing customers of the reasons for an employee's discharge would be privileged; but the case was, perhaps, unique in that the "customers" were,
by definition, the paper's readership. There are, however, a number of cases on notice to clients and customers concerning former employees growing out of letters or circulars directed specifi-cally
to them and not published to the world at large. There are more recent cases dealing with press releases concerning the discharge of employees, but these seem to turn on the separate
doctrine of "newsworthiness." See e. g., Richmond v. Southwire Co., 980 F. 2d 518 (8th Cir. 1992).
15. 51 S. E. 646 (Ga. 1905).
16. See ALLAN PINKERTON, TESTS ON PASSENGER CONDUCTORS MADE BY THE NATIONAL
DETECTIVE AGENCY (1870); CLARENCE RAY, THE RAILROAD SPOTTER (1916).
17. It would be a question for the jury whether the business of the company at the
place the bulletin was posted was carried on in such a way that the company must have known, at the time the bulletin was posted, that persons other than employ³ es would
probably read the same. But the company knew that the bulletin in this place would be read by a large number of employ³ es who had no concern whatever with the matter to
which it referred, and the mere fact that the persons who saw and read it were employ³es does not make the communication privileged, unless it was necessary for the protection
of the company that these employ³ es should know of the matter. If the company had reason to believe that its interests were imperiled by the failure or refusal of the plain-tiff
to deliver these tickets, it had the right to communicate to its employ ³ es connected with that department of the work where the tickets would be used the facts in relation
to them, with appropriate instructions as to what should be done in case they were presented. But it was in no way necessary that these facts should be communicated to the
large body of its employ³es, without reference to whether they had any connection with this department of its business. If, in its system of business, its bulletins are so posted as
to be read by all of its employ ³ es, without reference to whether they have any connec-tion with the matter stated in the bulletin, the company must take care that the bulle-tins
are couched in such terms that they will not be defamatory of any person.
Sheftall, 51 S. E. at 649 (emphases added).
18. The company had the right . . . to use the name of Sheftall, if it had reasonable grounds to suspect that he was misappropriating, or would misappropriate, the tickets,
and to use words that would convey that idea in communicating the facts to employ³es who were concerned with the tickets. But if, in communicating the facts to other em-ploy³es,
it used the name of Sheftall in a connection which would carry the implication that he had been guilty of wrongdoing, it has no right to claim the privilege of the law.
Id. at 649 (emphases added).
19. Id.
20. Id. at 650.
21. Id. (emphases added).
22. See, e. g., the cases cited infra nn. 26, 27, 31, 36, 59, and 68. Illustrative of the care taken is Murphy v. Johns-Manville Prods. Corp., 133 A. 2d 34 (N. J. App. Div. 1957). Five copies of the
company's notes of a union-management meeting called to discuss the discharge of an employee on charges of theft were circulated to union officers and thirteen copies were circulated to com-pany
officials. There is no question that the meeting was privileged and that the circulation of the notes to those who had attended the meeting was equally privileged. The question attended
to by the court was of the precise interest of each of the other non-participant recipients.
23. Sias v. General Motors Corp., 127 N. W. 2d 357 (Mich. 1964).
24. Id. at 360.
25. Id.
26. Compare Brown v. Norfolk & W. Ry. Co., 42 S. E. 664 (Va. 1902) discussed supra, note 10. In that case, however, the company's announcement was in response to the discharged em-ployee's
public allegations against a company official, i. e. a matter the employee had made into a public controversy.
27. In Welch v. Chicago Tribune Co., 340 N. E. 2d 539 (Ill. App. 1975), for example, a written notice that a sports writer had been dismissed "because of alcoholism, inefficiency, lack of punc-tuality,
and unreliability" was posted on a bulletin board in the sports department. It was later removed and placed in the mailbox of all employees of the sports department including "string-ers"
and mailboys. The grant of summary judgment for the newspaper was reversed and the case remanded for trial. The appellate court opined in pertinent part that the newspaper
Id. at 543 (emphasis added). The court suggested in dictum that a more narrowly drafted and circulated notice would have satisfied the privilege.
28. Drennen v. Westinghouse Elec. Corp., 328 So. 2d 52, 55 (Fla. App. 1976).
29. Garziano v. E. I. DuPont de Nemours & Co., 818 F. 2d 380 (5th Cir. 1987).
30. The company circulated a written bulletin to each of its 140 supervisors using the dis-charge as a means of emphasizing the company's policy on sexual harassment; but these in turn
were expected to share or discuss the bulletin with the workers they supervised. Id. at 383-84.
31. Id. at 387 (italics added).
32. Id. The cases relied upon by the court are, in chronological order:
clerk had in being informed of the discharge: "The cash registers in the store were used by all of the employees, at one time or another, and each employee had a personal
interest in the honesty of every other, for if one is dishonest suspicion may be cast upon all." Id. at 6.
33. Perhaps because the proposition is so at odds with the body of prior law, some commen-tators
have tried to gloss Garziano to an opposite effect:
818 F. 2d at 395. 34. Id. at 388.
35. Id. at 384 n. 7.
36. Hines v. Arkansas La. Gas, 613 So. 2d 646 (La. App. 1993).
37. Messerly v. Asamera Minerals, (U. S.), Inc., 780 P. 2d 1327, 1332 (Wash. App. 1989), overruled on other grounds, Swanson v. Liquid Air Corp., 826 P. 2d 664 (Wash. 1992). The court
also bolstered its conclusion by reliance on several other cases none of which support the propo-sition that the company's employees who share the "common interest" in the communications
include the facility's entire workforce. Id. at 1332 n. 3. They are, in chronological order:
38. See, e. g., Olson v. 3M Co., 523 N. W. 2d 578, 585 (Wis. App. 1994) (" Although 3M did not identify Olson and Konichek [the plaintiffs] in these communications (or in the press release),
we accept as true Olson and Konichek's claim that 3M employees knew who was terminated.").
39. Zinda v. Louisiana Pacific Corp., 440 N. W. 2d 548, 553 (Wis. 1989).
40. Id. The court held it a jury question whether the privilege had been exceeded by the foreseeable circulation of its newsletter in the larger community outside the employer-employee
relationship.
41. Olson v. 3M Co., 523 N. W. 2d 578 (Wis. App. 1994).
42. Id. at 585.
43. Wirig v. Kinney Shoe Corp., 461 N. W. 2d 374 (Minn. 1990).
44. Id. at 378. The court ultimately held that the company lost the privilege because its
investigation was inadequate. Id. at 380-81.
45. Harris v. Procter & Gamble Mfg. Co., 401 S. E. 2d 849 (N. C. App. 1991).
46. Hanly v. Riverside Methodist Hosps., 603 N. E. 2d 1126, 1132 (Ohio App. 1991).
47. Bickford v. Teletronix, Inc., 842 P. 2d 432 (Or. App. 1992).
48. Id. at 434.
49. Schrader v. Eli Lilly and Co., 639 N. E. 2d 258, 263 (Ind. 1994).
50. Rice v. Hodapp, 919 S. W. 2d 240 (Mo. 1996). The Supreme Court of Missouri cited a lower court decision for the proposition that an employer's interest in the efficient operation of
its business justifies the communication to other workers of the fact that a discharge was for
sexual harassment, without acknowledging that that decision had held that an intracorporate communication in Missouri is not subject to any requirement of a "need to know." Lovelace v.
Long John Silvers, Inc., 841 S. W. 2d 682, 685 (Mo. App. 1992). Perhaps because of that, the Lovelace opinion gives no indication of how many employees were informed or under what
circumstances.
51. Id. at 244. To similar effect see Petersen v. Dacy, 550 N. W. 2d 91 (S. D. 1996).
52. See generally, JOHN P. DAWSON, THE ORACLES OF THE LAW 88-89 (1968). See also infra, note 68.
53. Wirig v. Kinney Shoe Corp., 461 N. W. 2d at 380 citing Otto v. Charles T. Miller Hosp., 115 N. W. 2d 36 (Minn. 1962); McBride v. Sears, Roebuck & Co., 235 N. W. 2d 371 (Minn. 1975);
Hebner v. Great N. Ry. Co., 80 N. W. 1128 (Minn. 1899).
54. McBride v. Sears, Roebuck & Co., 235 N. W. 2d 371 (Minn. 1975).
Otto v. Charles T. Miller Hosp., 115 N. W. 36 (Minn. 1962).
56. Hebner v. Great N. Ry. Co., 80 N. W. 1128 (Minn. 1899).
57. Zinda v. Louisiana Pac. Corp., 440 N. W. 2d at 552.
58. Calero v. Del Chem. Corp., 225 N. W. 2d 737 (Wis. 1975); Hett v. Ploetz, 121 N. W. 2d 270 (Wis. 1963).
59. 440 N. W. 2d at 553, citing Johnson v. Rudolph Wurlitzer Co., 222 N. W. 451 (Wis. 1928).
60. The employer's statements "were made to none other than the employees in this office, all interested, because of such employment, in the very matter of discovering the source or
causes of or for the shortage conceded to have existed." 222 N. W. at 454.
61. Bickford v. Teletronix, Inc., 842 P. 2d at 434, citing Benassi v. Georgia-Pacific, 662 P. 2d 760 (Or. App. 1983), mod. 667 P. 2d 532 (Or. App.), rev. den., 670 P. 2d 1035 (Or. 1983).
62. 662 P. 2d at 764.
63. 842 P. 2d at 434.
64. Slaughter, supra, note 12 at 383 discussed in the text accompanying supra, note 13.
65. In Patane v. Broadmoor Hotel, Inc., 708 P. 2d 473 (Colo. App. 1985), the court ob-served:
"Employees of a company share a common interest in information relating to turnover or status of personnel . . . An employer's discharge of an employee prompts an occasion to
inform other employees of the reason for the change in personnel." Id. at 475 (citations omit-ted). But the case actually concerned disclosure to a single co-worker.
Some cases did hint at the broadened approach taken more recently: In Stephenson v. Marshall, 104 F. Supp. 26 (D. Alaska 1952), the Chairman of the Board of Alaska Airlines
informed a meeting of 75 to 125 employees (and some spouses) that the Vice President and General Manager had been discharged for taking money. The statement was held privileged;
but, it ought be noted that the meeting was called to discuss the financial future of the airline, the discharged manager was a popular figure, and, importantly, the statement was made in an-swer
to a question from the audience. In Deaile v. General Tel. Co. of Cal., 115 Cal. Rptr. 582 (Cal. App. 1974), the court sustained the extension of the privilege to the circularization of the
reasons for an employee's involuntary retirement to other employees at the facility as in "an effort to preserve employee morale and job efficiency." Id. at 585. But it ought also be noted
that the company's policy, sustained by the court, was to inform only supervisors of the reason for the discharge and to authorize their further dissemination to employees only if the latter
expressed "misconceptions," i. e. apparently in response to worker questions about the plaintiff's discharge. Id. And in Gonzalez v. Avon Prods., Inc., 609 F. Supp. 1555 (D. Del. 1985), judgment
n. o. v. granted, 648 F. Supp. 1404 (D. Del. 1986), aff'd, 822 F. 2d 53 (3d Cir. 1987), the court held it for a jury to decide whether stating the reasons for the discharge of several unnamed employees
in a special meeting of 900 employees was an abuse of the privilege. It later granted the com-pany's motion for summary judgment after the jury deadlocked. The second opinion focuses on
the issue of malice. The first does not address the issue of excessive publication, reserving it to the jury. Even so, it is roughly contemporaneous with Garziano and seems to anticipate it.
68. The fiction of mutuality may have served as a way of avoiding inconvenient precedents in order to adopt a rule better grounded in economic efficiency. Cf. UGO MATTEI, COMPARA-TIVE
LAW AND ECONOMICS 85 (1997) (suggesting that stare decisis might be a barrier to the judicial development of law on the basis of "efficiency reasoning"). It remains to be seen, how-ever,
whether the departure from precedent is soundly so grounded; in the event, no study of the welfare effects of the rule is judicially essayed.
69. 818 F. 2d at 387-388, citing 29 C. F. R. º 1604.11( e).
70. The Missouri Supreme Court also relied upon the rules of the Equal Employment Op-portunity
Commission, stressing the importance of preventive efforts to deter sexual harassment. Rice v. Hodapp, 919 S. W. 2d at 244, citing 29 C. F. R. º 1604.11( f)( 1995).
71. Sias v. General Motors Corp., 127 N. W. 2d 357, 360 (Mich. 1964).
72. Even here, the exacting care observed by the courts concerning the employer's dissemi-nation of the reasons for discharge was earlier noted. See Murphy v. Johns-Manville Prods.,
supra, note 21. As one court put it in such a case:
Jorgensen v. Pennsylvania RR. Co., 118 A. 2d 854, 870 (N. J. App. Div. 1955).
73. GARY T. MARX, UNDERCOVER: POLICE SURVEILLANCE IN AMERICA 87-88 (1988):
to be thieves. After a period of brief employment, the actor begins visibly stealing whatever he or she can. The "thief" is then "caught" and fired in a very public display.
The firm's motto is, "Hire someone to fire."
74. RICHARD VAN D ¿ ULMEN, THEATRE OF HORROR: CRIME AND PUNISHMENT IN EARLY MODERN GERMANY 56 (Elisabeth Neu, trans. Polity Press, Basil Blackwell, Inc., Cambridge,
England 1985).
75. Gertrude Himmelfarb, Second Thoughts on Civil Society, THE WEEKLY STANDARD Sept. 9, 1996 at 21, 25. There is a rich literature on the idea of a "civil society," fortunately
beyond the scope of this essay. Suffice it to say, Himmelfarb's observation illustrates one thread that runs through some of the thought on point, to "elevate the role of culture and the mecha-nisms
of civil society." Marvin B. Becker, An Essay on the Vicissitudes of Civil Society with Special Reference to Scotland in the Eighteenth Century, 72 IND. L. J. 463, 467-68, n. 11 (1997).
76. See supra note 49 and accompanying text; see, also Stockley v. AT & T Info. Sys., Inc., 687 F. Supp. 764, 771 (E. D. N. Y. 1988) (dictum).
77. Schrader, 639 N. E. 2d at 263.
78. GERTRUDE HIMMELFARB, THE DE-MORALIZATION OF SOCIETY: FROM VICTORIAN VIRTUES TO MODERN VALUES 260 (1994). Perhaps the following illustrates something of what
Himmelfarb had in mind: Kerry Castleberry had been a manager with the Boeing Company for more than ten years. When a female employee in his office was to celebrate her birthday, a
female co-worker decided to give her a dildo as a "gag" gift at a party held in the office. Mr. Castleberry was not aware that the gift was to be given, but he briefly commented on it laugh-ingly
(" this looks familiar") when it was displayed, also briefly. Neither female employee was offended either by the gift or by Mr. Castleberry's remarks. However, a male manager present
at the party reported the incident and extensive corporate consultations ensued at high manage-rial and legal levels. Apparently Mr. Castleberry should have objected immediately to the sex-ual
object's presence and, perhaps, remonstrated all present. In the event, he was fired, and the fact of his discharge Ï for "sexual harassment" Ï announced at meetings of 250 Boeing manag-ers.
Castleberry v. Boeing Co., 880 F. Supp. 1435 (D. Kan. 1995). His discharge worked no violation of any civil right; and the circularization of his discharge for sexual harassment was
held privileged.
79. See generally, Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. CHI. L. REV. 591 (1996). In Allen v. Clemons, 920 S. W. 2d 884 (Ky. App. 1996), the parents of a molested
child posted a billboard in their yard stating, "Danger Ï Child Molester in the Community," referring to a neighbor who had been convicted of the charge and was granted bond pending
appeal. He sued for infliction of emotional distress. The dismissal of his complaint was affirmed. The emotional distress he suffered was held to have been the consequence of the public knowl-edge
that flowed from his conviction, not the defendants' action of giving further publicity to it.
80. See, e. g., Jan Hoffman, Crime and Punishment: Shame Gains Popularity, NEW YORK
TIMES, Jan. 16, 1997, at A1. Editorial, Alternative Sentencing, NEW YORK TIMES, Jan. 20, 1997, at A14.
81. See generally, Matthew W. Finkin, Employee Privacy, American Values, and the Law, 72 CHI.-KENT. L. REV. 221, 249-251 (1996).
82. Id. If in the 1820s, the Calvinist "Society for the Suppression of Vice and Immorality," led by the more prominent masters in Albany, New York, publicly condemned drink and drink-ers
among the working class -- "Disrespectful and indolent workers, runaway husbands, Sab-bath breakers, paupers, brawlers, criminals, and disease carriers all combined in their minds into
the collective image of an inebriated working class" -- the Workingman's Party publicly rejected the "self-interested tyranny" of the masters even as it supported temperance. DAVID HACKETT,
THE RUDE HAND OF INNOVATION: RELIGION AND SOCIAL ORDER IN ALBANY, NEW YORK 1652-1836, 120-121 (1991) (reference omitted).
83. VAN DULMEN, THEATRE OF HORROR, supra, note 74 at 107. Even in thirteenth century France, public penance Ï shame and humiliation Ï was imposed by the Church on the rebel-lious
bourgeoisie not as an expression of communal norms but as a weapon to assert authority. MARY C. MANSFIELD, THE HUMILIATION OF SINNERS: PUBLIC PENANCE IN THIRTEENTH-CEN-TURY
FRANCE 266-67, 276 (1995).
84. VAN D ¿ ULMEN, supra, note 74 at 174, n. 49.
85. E. g., "I agree as a condition of employment that, in the event I am discharged on the good faith belief that I had violated plant rules or had otherwise misconducted myself, the Com-pany
may circulate the fact of my discharge and the reason for it to any or all of the Company's managers, supervisors, employees, and independent contractors."
86. See generally, MICHAEL J. TREBILCOCK, THE LIMITS OF FREEDOM OF CONTRACT 23-57 (1993).
87. ALLEN D. ROSEN, KANT'S THEORY OF JUSTICE 25 (1993) (references omitted).
88. Truth is an absolute defense in defamation. As to a wrongful invasion of privacy, this
result could be reached by the expedient conclusion that the reasons for a discharge are either not "private" facts or are not facts so embarrassing or offensive as to give rise to an action in
privacy. Cf. Howell By Goerdt v. Tribune Entertainment Co., 106 F. 3d 215, 220 (7th Cir. 1997), discussing Zinda v. Louisiana Pac. Corp., 440 N. W. 2d 584 (Wis. 1989). However, the latter rea-soning
would produce the anomalous situation that a wrongful accusation of misconduct would be defamatory, as working a reputational harm, but an accurate accusation of the same miscon-duct
could not be considered unreasonably offensive for privacy purposes.
89. No argument has yet been made that truthful disclosure to the workforce is insulated from attack as a form of constitutionally protected "commercial speech," i. e., as an expression
"related solely to the economic interests of the speaker and the audience." Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U. S. 557, 561 (1980). As a perhaps crude first cut on
the question, it may be relevant that although the motive of the speaker is "solely economic," the content of the communication is not.
90. Gertrude Himmelfarb comes close, if unintentionally, to conflating social approval with economic control. One of the many virtues of Victorian England that she would have civil soci-ety
reinstill is "character" which, for men, meant (among other things) "having a job." GER-TRUDE HIMMELFARB, THE DE-MORALIZATION OF SOCIETY: FROM VICTORIAN VIRTUES TO
MODERN VALUES 32 (1994). She explains "character" more fully:
Id.
Having a "character" did indeed mean "having a job," for in both England and America business had adopted the practice of demanding a "character" of an applicant whose inability to
produce it would result in an automatic denial of the possibility of employment and which refer-ence the prior employer was under no legal obligation to provide. Such was the common law in
the United States as well as England; but in America, several jurisdictions legislated against the common law in statutes that required employers to supply accurate statements of reasons for
discharge. See, H. F. STIMSON, HANDBOOK TO THE LABOR LAW OF THE UNITED STATES º61 (1907). In other words, American legislatures of a century ago saw the unregulated business
requirement of a "character" as unfairly bolstering the subordination of the employee to the employer who could withhold it for arbitrary reasons Ï or for joining a union. In this,
America's values differed from England's.
91. See generally, Matthew W. Finkin, Employee Privacy, American Values, and the Law, 72 CHI.-KENT L. REV. 221, 240 (1997).
92. Id. at 240. For a more recent example of just this kind of reasoning, see, Loder v. City of Glendale, 927 P. 2d 1200, 1223-24 (Cal. 1997), and criticized on just this ground id. at 1237 (Mosk,
J., dissenting in part).
1) DuPont believed it had a legal duty to do so; 2) the bulletin was necessary to inform employees of DuPont's policy against sexual
harassment; and 3) employers are protected in communicating on matters of "common interest" with employees.
[W] e think that a jury could determine that it was unnecessary for Rivers [the manager] to tell essentially every employee in the ma-chinery
construction division that plaintiff was "drunk and misbe-having," that he had a "drinking problem" and that any belief that
Rivers may have had as to the necessity of doing so was unreasonable.
II. PRIVATE POWER AND PUBLIC DISGRACE
FOOTNOTES
It is said that the plaintiff's name need not have been mentioned by the defendants, and that the privilege of the occasion was lost because his name was mentioned. That is not
so. It might possibly be that the mentioning of his name could be suggested as evidence of malice on the part of the defendants Ï not that I think the suggestion could be
maintained for one moment. But, at any rate, it could only be used as evidence to show that the defendants had abused the occasion Ï not that the occasion did not exist.
c. Notices circulated among the co-employees of the persons to whom they relate.
[The communication was made] to another person alike interested in behalf of the com-pany regarding matters pertaining to his duties as an agent of the company authorized
to employ men. Care was taken to restrict the communication to the proper persons, and also to prevent undue publicity. It is not only proper, but it is of the utmost importance
to the company, and to the public having business transactions with it, that the servants employed by it shall be men of good character, temperate, and efficient. . . . The plan
adopted and pursued by the defendant was intended to protect the company against employment of persons whom it had found to be unworthy or inefficient, and is as fully
privileged as a communication from one stockholder to another respecting the employ-ment of a superintendent, or from one partner to another respecting the employment
of a bookkeeper, or from a person interested in a lawsuit to another interested respect-ing the solicitor employed.
[N]or is there evidence showing that the pamphlet containing the language complained of was ever placed by the officers of appellant company in the hands of any person
other than its own employees, to whom it was proper to give information necessary to guide them in the selection of persons to serve the company.
The record was made in one of the books of the corporation, kept for its own informa-tion, and the only publication complained of was when the record was communicated
by one of the clerks employed by defendant in the office of the telegraph superinten-dent to another clerk; both being interested, and both acting strictly within the line of
duty, and also acting that they might have information upon which to fill out the card which plaintiff had requested might be delivered to him. There was no undue publicity,
or even public dissemination of the contents of the book; and there is nothing in the record before us which indicates that care was not taken to confine this information to
such persons as were directly interested, and whose duty it was to know the reason for plaintiff's dismissal from defendant's service. It is conclusively established that there was
no wanton disregard of plaintiff's feelings or welfare.
It was argued [in Hunt] that the plaintiff's name need not have been mentioned by the defendants, and that the privilege of the occasion was lost because his name was men-tioned.
This contention was rejected.
asserted there must be a full and frank disclosure concerning employee conduct detri-mental to the interests of the company in order to discourage other employees from
engaging in similar conduct, and prevent inaccurate and irresponsible newspaper work. Even if these purposes are assumed to be valid, in our opinion defendants must show
that the memorandum was issued in a proper manner, to proper parties and in language limited to the duty they sought to uphold.
While the communication to the supervisors was reasonable, it was unclear whether their discussions of the memorandum with employees were reasonable since the discus-sions
were not raised at trial. Thus, the court remanded the case to determine whether there was excessive publication which would amount to an abuse of the privilege. The
decision in Garziano demonstrates that even when an employer's or the public's inter-est justifies some publication to co-workers, the employer still must limit the number of
persons informed and the amount of information given.
John Bruce Lewis, et. al., Defamation and the Workplace: A Survey of the Law and Proposals for Reform, 54 MO. L. REV. 797, 830 (1989) (citation omitted). That reading will not hold up. The
court recognized that even though the circular was intended to reach only the workforce, it was possible that non-employees had foreseeably been made recipients of the message, especially
employees of independent contractors, and so the court remanded for retrial, but with an ex-press admonition of law:
If the evidence shows that the supervisors published the information solely to DuPont employees, then the privilege was not abused. If supervisors discussed DuPont's state-ments
off of company property with persons who did not have a direct or legitimate interest in the matter, the qualified privilege was overcome by excessive publication.
The origin, pursuit and conclusion of the grievance proceedings seem to have been engaged in with a minimum amount of dissemination of the charge. Only those persons
who might be expected under the bargaining contract to have a justifiable or obligatory interest therein were made aware of the alleged libel by the defendant.
[A] New York firm called THEFT (the Honest Employers Fooling the Thieves) hires out unemployed actors to businesses concerned with employee theft. The actors pre-tend
["C]haracter" had not only the meaning it has today -- the moral and social attributes of a person -- but a more specific meaning as well. It was a written testimony by an
employer of the qualities and habits of his employee Ï his industriousness, honesty, punctuality, sobriety. Today we would call it a "reference," thus obscuring its specifi-cally
moral connotation. Moreover, it was not addressed and sent to a prospective future employer but remained in the possession of the worker, often carried in his
pocket so that he could read it for his own satisfaction and produce it if required. He knew what his "character" said Ï and what his character was.