Truth is a Defense

Sometimes we need to tell the truth. You have probably heard it before…truth is a defense to defamation.  You have probably heard it before…legal and/or HR says we cannot say anything negative about the departed employee. Both statements make logical sense; both are true in many respects. 

While telling the truth is often a valid and strong legal defense to someone who asserts that you have defamed them by saying something negative about them to their new or potentially new employer, defending oneself in a legal action is costly and there are no guarantees. This is why legal and/or HR will generally advise that it is best to say nothing. Only provide dates of employment and make no statements relative to their behavior or performance (or lack thereof).



I generally agree with this cautionary recommendation. It is a conservative and wise approach that can save the employer and its management valuable time and money. This is especially true when the former employee was merely a poor performer or engaged in problematic but not highly offensive bad behaviors. After all, it isn’t your job to help the other company vet their future employees, right?!

This being said, sometimes it is better to throw caution to the wind and sing like a canary. Especially when we know the sage adage that truth is a defense. So, when might truth be a risky but better path than the risk-adverse route of ‘speak not and forever hold your tongue?’ Let me share a story.

One day a former employee approached me with a concern. While the concern involved a current employee that the former employee felt had mistreated her and caused her to resign, it was an aspect of the backstory that piqued my curiosity (note that while the moral of the story will remain intact, I will modify a few of the facts to protect the confidentiality that I owe to the employer). The backstory involved, in part, a colleague of the former employee who had sexually harassed several people under the person’s care and supervision. My first curiosity was whether this colleague was still employed at the company. He was not. My second curiosity was whether an investigation was conducted and the sexual harassment allegations verified. Yes, and yes. My third curiosity was where this person was now working. Through an internet search I quickly learned that this person was working for a nearby institution doing the same work. This suggested to me that it was highly likely that the person was sexually harassing people under his care and supervision at the new place of employment. After all, past performance predicts future performance (or in this case behavior). My final curiosity was whether we fired the person after our investigation. We did not. We let him resign, and we did not provide the new employer with any information related to why he left.

Let me say that I am normally firmly in the camp of letting someone resign in lieu of termination. However, there are a few situations where I do not support this notion. Sexual misconduct is absolutely on the list of situations – and probably number two on the list after workplace physical violence (of course, sexual misconduct sometimes involves physical violence and, as such, can become first on my list of zero-tolerance acts that deserve swift and decisive actions).

In these matters, my advice is to not let them resign. It is a terminable offense, and the person should be terminated. They also should not be given the privilege of a ‘no-comment’ reference to their future employer. The future employer should have knowledge of who they are hiring. To do otherwise is to become almost complicit in any future misconduct committed by the former employee. Yes, speaking the truth to the future employer is risky (at least until we get clear laws providing a safe harbor for being truthful in these troubling scenarios). It may get the company and some of its leaders sued. But what is the alternative? Silence? Simply looking the other way so that a predator can victimize others? There are times when avoiding lawsuits might not be the most prudent path. Indeed, some fights are worth it. Most of them are not worth it and avoidance is ideal. But in situations like acts of violence and sexual misconduct…I would much rather defend a lawsuit than protect someone with malice in their head and heart.

But that’s just me…