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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 1 in which the harm to the individual is bal-anced against the greater good of society. In striking that balance, the law insulates employers from liability for conveying harmful informa-tion about an employee's performance and behavior so long as the information is either accurate or conveyed with adequate care for its accuracy, and so long as the recipients have a legitimate interest in receiving it: Prospective employers, relevant company managers, the employee's supervisors, and even the small circle of the employee's immediate co-workers have long been lawful recipients for such information.

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 ╬ the need to block "the urge to treat people as objects." 2 That these are so is explored below.

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. 3 In fact, Hunt had not been negligent; 4 but it had long been the practice of the com-pany to print and post such circulars in that fashion. Hunt sued for defamation and lost on the ground of privilege. He appealed and the decision was affirmed. Lord Esher, Master of the Rolls, opined:

    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. 5

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." 6 Lord Justice Fry concurred. Lord Justice Lopes wrote separately to opine that the privilege would extend to the use of Hunt's name; but, he agreed, that issue was not passed upon. 7

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; 8 and a comprehensive American treatise [P.3] later reiterated the annotation verbatim. 9 None of the American au-thority cited supported the proposition as so broadly put; 10 indeed, the [P.4] annotators took Lord Justice Lopes' opinion, erroneously, as a state-ment of the law.11

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 ╬ 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. 12 The tension lay in deciding whether other co-workers were [P.5] legitimate objects of that information, in the disposition of which the courts customarily took care that that information not have been cir-cularized "indiscriminately" to the larger workforce.

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. 13

No case is referenced in which the public at large was "warned" of a dismissed employee by publication in a newspaper. 14 But the [P.6]rail- roading case, Sheftall v. Central Ga. Ry. Co., 15 is quite at odds with the use made of it.

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. 16 Accordingly, the Supreme Court of Georgia thought conductors and sleeping car por-ters had a legitimate interest in knowing about the potential circula-tion of lost or stolen tickets. As much could not be said for other employees or for members of the general public. 17 Nor was it obvious to the court that the use of the plaintiff's name (or other means of identifying him) served a valid purpose. 18 Thus, if the Company [P.7]"spoke to the large body of its employees who had no concern in the matter, and if the bulletin was so worded as to be libelous . . . the company must be satisfied to rest under the same liability that any other would rest who frames and publishes a libel." 19

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 employ■ es, was published to another class of employ■ 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 employ■ es, and that the publication was either intentional, or it was due to negligence in the manner of publication to proper employes. 20

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." 21 It reversed the jury's judgment for the railroad.

For the most part, the exacting care taken by the Sheftall court continued to characterize the law for the next eighty years. 22 On occa-sion, whether a limited group of a dismissed employee's co-workers were so situated as to justify disclosure of the reasons for discharge to them presented a close case. In 1960, for example, a plant guard well known for his civic activity in the local community was discharged for theft, resulting in rumors circulating among his fellow plant guards that the company felt to damage morale, i. e. apparently suspecting the company of wrongful action regarding a popular co-worker. 23 To dis-pel these rumors, the company had its reason for discharge explained to a random sample of these co-workers. The company did so, said the Supreme Court of Michigan, to serve "its own particular inter-est," 24 and in so doing it exceeded the scope of the privilege: [P.8]

    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. 25

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. 26 But it is to ob-serve that a specific showing of a business or social situation had al-ways been required to privilege disclosure of the reason for an employee's discharge in which the maintenance of "morale" or "disci-pline" among the larger workforce simpliciter had never been counte-nanced as a satisfactory basis for disclosure. 27 Thus it is altogether unremarkable that when Westinghouse Electric informed all of its ap-proximately 300 employees at a Florida facility in 1973 that an em-ployee had been discharged for theft, the Florida Court of Appeals rejected the claim of privilege in two terse sentences. 28

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. 29 Pur-suant to that policy, DuPont communicated the fact that an unnamed employee had been discharged for engaging in sexual harassment to the entire workforce of 400 employees and 140 supervisors at its plant [P.9] in DeLisle, Mississippi. 30 A jury verdict was rendered for the em-ployee and the company appealed. The Fifth Circuit commenced its analysis with the following proposition: "Co-workers have a legitimate interest in the reasons a fellow employee was discharged." 31 It cited six cases in support of the proposition: All are in keeping with the bounds previously crafted by the courts; 32 none support the bald prop-osition that one's "co-workers" include the entire complement of the plant or office workforce. 33 Nevertheless, the Fifth Circuit proceeded to hold the communication privileged because: [P.10]

    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. 34

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. 35 In-deed, this distinction has played no role in recent cases. Where a com-pany told a meeting of forty-eight employees that a named supervisor had been discharged for sexual harassment, the statement was held privileged as a matter of law. 36 And where a mining company circu-lated a memorandum to all employees at the mine informing them that three unnamed miners had been discharged for drug use while at work underground, the privilege was held to apply: The company and "its employees" had a common interest in safety and in deterring the use of illegal drugs even though the circularization would seem to have included employees other than miners. 37 Both cases relied on [P.11]Garziano without comment on the distinction between a named and unnamed subject.

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. 38

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." 39 Publication "discourages other employees from engaging in similar conduct" and employees "have an interest in knowing how the rules are enforced, and the type of con-duct that may result in their discharge . . . ." 40 The Wisconsin Court of Appeals later extended the privilege to an announcement to an em-ployer's entire workforce that two production workers had been dis-charged for engaging in sexual harassment. 41 The court stated that the employer could name the misbehaving employees in its communica-tions to its employees "with impunity." 42

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. 43 Given the ap-parent small size of the work group and their presumed knowledge of the company's investigation, the result was arguably in keeping with prior law; but the court announced a more sweeping rationale: The company could do so because its legitimate purpose was to prevent future theft "by punishing" the perpetrators in full view of the workforce. 44

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. 45 Also in that year the Ohio Court of Appeals held that a hospital could inform its employees (in several small group meetings) that the plaintiff had been discharged for sexual harassment in light of the employer's "purpose of affirming its policy regarding sexual harassment" for which these meetings were held. 46

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." 47 The trial court's grant of summary judgment for the employer was sustained: "In their mo-tion for summary judgment," the appeals court opined, "defendants asserted the privilege and introduced evidence that the statements . . . were made to protect Teletronix's [the company's] interest in promot-ing employee morale." 48

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." 49 And in 1996, the Supreme Court of Missouri held that a company was privileged to assemble 50 to 80 office workers to in-form them that two co-workers were being transferred for sexual har-assment. 50 Again, the result was arguably in keeping with prior law. [P.13]I. e., the announcement could have been justified on the ground that inasmuch as 32 of 45 female employees interviewed had complained of that conduct, both the conduct and the fact that it was under inves-tigation was well known to the group. But the court chose to rest on the broader ground that, "Employees have a legitimate interest in their employer's guidelines for appropriate behavior." 51

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, 52 and it should not be let pass unsubstantiated: Misrepresentation or Elision. The Supreme Court of Minnesota relied on three cases to emphasize the degree of care necessary to sustain an allegation of such wrongdoing as to justify discharge, 53 omitting any attention to the scope of the qualified privilege at issue. In all of these, however, the circle of distribution was confined to those with a specific need to know: One concerned communication to and by agents of management engaged in investigating the incident. 54 One concerned communication made during the course of a discipli-nary interview to a union steward who was present at the employee's request. 55 One concerned disclosure to clerks who prepared the no-tices of discharge routinely issued by the company, i. e. a case noted earlier for the emphasis the court placed on the care taken by the employer not to disseminate the information more widely. 56

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." 57 Two of these concerned references to prospective employers. 58 The third would seem to be on point, for it concerned statements made by a store man-ager to employees in its business office about a co-worker's alleged embezzlement. "We stated," the court said of that case, "that because of their employment, the employees had a common interest in discov-ering the source of the shortage that was being investigated." 59 I. e., not because of the fact of their employment, but because of their par-ticular employment, because the statements were made of and in con-nection with an investigation in which they themselves were potentially implicated. 60 Thus the case is at odds with the use later made of it.

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. 61 In the case relied upon, a company manager assembled the 120 employ-ees of his division to inform them that his predecessor had been dis-charged for being drunk and misbehaving. And as the court noted, a jury verdict for the plaintiff was indeed reversed in that case. But the reversal was only on the issue of damages. In point of fact, the court in that case had held there to have been sufficient evidence of exces-sive publication to go to the jury:

    [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. 62

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. 63 [P.15]

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" 64 as the product of an inexorable logic. But the history is to the contrary; the slippage is new. I. e. de-spite occasional statements of general principle as sweeping as Garzi-ano, 65 for a century the courts had striven to keep the privilege within limits, and with general success. 66

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, 67 but, the core element of the privilege con-tinued to require that a speaker's interest sufficient to sustain the priv-ilege be one society recognizes as conducing toward the greater good, of such larger social dimension as to trump the individual's dignitary interest. The courts that have extended the privilege have proceeded [P.16]on a fictional mutuality of interest; and because of that, none of them has explained, or even attempted to explain, how we all are better off by allowing an employer that power. 68 These cases were decided not because the privilege could not be cabined, but in spite of its historical cabining; not due to the privilege's inexorable logic, but by indiffer-ence to its doctrinal foundation.

II. PRIVATE POWER AND PUBLIC DISGRACE

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 69 or elsewhere 70 suggest that the duty to educate employees about the rules include the privilege to name and shame those disciplined for violating them; nor would this justifica-tion, grounded in that particular law, extend to a disclosure of dis-charge for misrepresenting one's credentials or for performance failure.

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, 71 the claim of mutuality of interest is not especially strong. Why that is so requires more extended consideration.

"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; 72 the choice is the employee's. But the point here is that the very availability of the process is a protection against arbi-trary treatment. Consequently, a unionized employer has no need to inform employees at large of the reason for a discharge in order to assure them that it had not behaved arbitrarily.

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. 73 ) As in 16th century Germany, to manifest the evil, the evil-doer's punishment must be publicly manifested; the exposure to shame binds the society whose norms have been violated. 74

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 ╬ 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." 75 Such seems to be the sense of the [P.19] opinions in some of the sexual harassment cases; 76 and when the Eli Lilly Co. posted notices accessible to its 1,500 employees of the dis-charge of six named employees for dishonesty, it defended the an-nouncement as an expression of the "core values" of the company which, the Supreme Court of Indiana concluded, it had a right to com-municate in that fashion. 77

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." 78 In other words, when we privilege employers to hold em-ployees up to public obloquy for violating company rules, because the public disapprobation reinforces our vision of the good society, we can have no assurance that the rules enforced in that fashion are necessar-ily ones we believe a good society should approve.

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, 79 is a consequence of penal rules that govern a political democracy. Those who are to be governed by the rules have a role if not in fashioning them directly, then in selecting those who do. In other words, the penal use of public shame is a question open to public debate. 80 The private workplace, in the absence of a union, has no analogous ele-ment of industrial democracy; and, historically, American workers re-sisted the assumption of a morally instructive (and quasi-parental) role by their employers as an affront to their dignity and indepen-dence. 81 Americans recognized the power of parents publicly to chas-tise their children, the power of courts publicly to stigmatize the criminal, and the power of churches to hold their communicants up to communal condemnation. But they declined to concede any claim of moral superiority to their employers. 82 Consequently, the analogy of this form of industrial punishment to the criminal punishment of early modern Germany seems particularly apt, for the public display of pun-ishment in the 16th century, sometimes only of shame -- the pillory, or standing before the public holding a candle and a rod -- sometimes of mutilation and a hideous, protracted death, aimed not only at [P.21] de- terrence, but at "convincing demonstrations" of the power of author-ity. 83 Since the Enlightenment, however, the latter has been taken to presuppose political consent, 84 to which the "moralization" of em-ployer authority has no analogous element.

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. 85 If one can sell one's dignity ╬ the right to be treated and regarded as a person -- as part of the wage bargain, then there would seem to be no limit on an employer's reserving the right to invade one's privacy or to impose humiliating or harassing working conditions, short only of agreement to restraints of one's physical person the commodification of which is prohibited by the Thirteenth Amendment. Defining the limits on freedom of con-tract in this regard is not without considerable complexity. 86 Suffice it to say here that there is rather little new to the idea that "a person may have rights that it would be unjust for her to give up, and that she should not therefore be allowed by law to trade away . . . . [S] uch limitations are both commonsensical and well entrenched in most con-temporary legal systems." 87

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. 88 This is an attractive alternative if our sole [P.22] concern is assuring that those publicly disgraced are really those who "deserve" publicly to be disgraced, for it would make the employer an insurer of accuracy were it to choose to avail itself of this disciplinary device. 89 But it begs the larger question of why we should allow em-ployers to treat people, even the morally miscreant, as public "object lessons."

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, 90 is justified by reference to an-other previously sustained dignity-depriving action. Such in fact is the history of the law of worker privacy. 91 If, for example, it is permissible for an employer to treat an employee as an object of medical exami-nation, a process that occurred shortly after the turn of the century, [P.23] then why not as an object of genetic or psychological examination? 92 So, too, if disclosure of an accurate reason for discharge is to be al-lowed as a means of more effective control of the workforce, why should an employer not be allowed to disclose the names of persons discharged because they have failed successfully to complete a com-pany- sponsored drug or alcohol abuse rehabilitation program, as a means of conveying the seriousness the company attaches to individ-ual responsibility and of communicating the company's fairness in af-fording such second chances?

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.

FOOTNOTES

*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.:

    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 ╬ 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 ╬ not that the occasion did not exist.

8. 4 L. R. A. (N. S.) 1121 (1906):

    c. Notices circulated among the co-employees of the persons to whom they relate.

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 Ž 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 ╬ e. g. "theft," "incompetence," "insolence," or "drunkenness" ╬ 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):

    [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.

Id. at 184 (emphasis added).

Missouri Pac. Ry. Co. v. Richmond, 11 S. W. 555 (Tex. 1889):

    [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.

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:

    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.

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:

    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.

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 employ■ es would probably read the same. But the company knew that the bulletin in this place would be read by a large number of employ■ 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 employ■es does not make the communication privileged, unless it was necessary for the protection of the company that these employ■ 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 ■ 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 employ■es, 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 ■ 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 employ■es who were concerned with the tickets. But if, in communicating the facts to other em-ploy■es, 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

    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.

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:

  • Hall v. Rice, 223 N. W. 4 (Neb. 1929). A cashier was discharged for theft and her fellow store clerks were informed. The Supreme Court of Nebraska noted the interest each

    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.

  • Louisiana Oil Corp. v. Renno, 157 So. 705 (Miss. 1934). In a regularly scheduled meeting of service station managers, the company's district manager stated that an-other service station manager had been discharged for bootlegging; this, however, in response to the discharged employee's replacement having stated that he could in-crease sales if he could sell alcoholic liquor. Though some truck drivers were in attend-ance, it does not appear that the fact of discharge was circulated any more widely.
  • Gardner v. Standard Oil Co., 175 So. 203 (Miss. 1937). A manager told two co-workers that a driver with whom they worked had been discharged for theft. Interest-ingly, the manager made a similar statement to a third person who was later hired by the company. The court held that this statement was not privileged and could be used to show that the statements to the two co-workers were malicious. Id. at 205.
  • Kroger Co. v. Young, 172 S. E. 2d 720 (Va. 1970). The company informed a cashier who had been offered a transfer that the person she was replacing had been discharged for theft. The court held the statement privileged; the replacement "was entitled to know the reason for the discharge of a fellow employee whose place she was asked to fill." Id. at 723.
  • Benson v. Hall, 339 So. 2d 570 (Miss. 1976). Letters from the chairman of an aca-demic department critical of the department's secretary were sent to the president and vice president of the university. The Supreme Court of Mississippi held the letter to be privileged, emphasizing that the "circle" encompassing the privilege "encloses those [and, presumably, only those] people who have a legitimate and direct interest" in the communication. Id. at 573 (emphases added).
  • Knight v. Baker, 363 N. E. 2d 1048 (Ind. App. 1977). A member of a three-member crew of metal buffers was discharged for falsifying cards used by the crew to record their operations, and the two other members of his crew were informed. This was held to be privileged "as all the employees [of the crew] had a pecuniarily common interest in the operation of the metal buffing department . . . ." Id. at 1051.

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:

    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.

    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:

    • Ponticelli v. Mine Safety Appliance Co., 247 A. 2d 303 (R. I. 1968). Where a production worker was discharged for padding her piecework reports, the disclosure to five or six immediate co-workers on that production line was held privileged. The disclosure ex-tended to only "a limited group of co-workers who might thereby be discouraged from engaging in similar practices." Id. at 307 (emphasis added). The court pointed out that these employees had claimed work on their cards that the discharged employee claimed on hers, and that "the finger of suspicion could reasonably have pointed, not alone at plaintiff, but at her co-workers as well." Id. At 308. Consequently, they were entitled to learn that the responsibility had been charged to the plaintiff and not to them.
    • Burns v. Supermarkets Gen. Corp., 615 F. Supp. 154 (E. D. Pa. 1985). The disclo-sure of employee discharge for improperly reducing the price of produce which the employer viewed as theft was made to the lead clerk whose position required that he be informed of the reasons for discharge of an employee in his department.
    • Happy 40, Inc. v. Miller, 491 A. 2d 1210, (Md. Ct. Spec. App.), rev. den., 498 A. 2d 1185 (Md. 1985). Manager's response to two cashiers who inquired of why a fellow cashier had been discharged was that she was suspected of theft. The court noted that if the manager were not permitted to answer their question "he would run the risk of appearing arbitrary and capricious . . . [which would] affect the remaining employees' morale and sense of security . . . ." Id. at 1216.
    • Gordon v. Tenneco Retail Serv. Co., 666 F. Supp. 908 (N. D. Miss. 1987). Store manager informed two other clerks of a retail outlet that the plaintiff cashier had been fired for theft.

    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.

    67. Slaughter, supra note 12.

    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. Ž 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. Ž 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:

      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.

    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):

      [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

      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 ╬ for "sexual harassment" ╬ 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 ╬ 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 ╬ shame and humiliation ╬ 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:

      ["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 ╬ 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 ╬ and what his character was.

    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 Ž61 (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 ╬ 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).

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