Employee Rights and Employment Policy Journal
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
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
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
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
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
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
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
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
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
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
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
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
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]
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
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
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,
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.
*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.  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.
[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
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).
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.
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: