California Civil Code sections 45 and 46 define libel and slander (written and oral statements which may constitute defamation). It has been consistently held in California over 60 years ago that libel includes, with certain limitations, almost any language, which, upon its face, has a natural tendency to injure a person’s reputation either generally or with respect to his occupation. Washer v. Bank of America (1943).
The courts have held that while there is a strong public interest in allowing employers to freely and subjectively evaluate the performance of their employees according to their own unique standards and guidelines, even a performance review can be defamatory if it accuses an employee of criminal conduct, lack of integrity, dishonesty, incompetence, or reprehensible personal characteristics or behavior.
The critical part of any defamation claim is demonstrating that the defamatory language used by the employer was an assertion of fact or not an opinion. Thus, when the employer describes an employee in the performance review as “poor communicator” or “lacking in focus” – these are highly subjective statements of opinion that cannot constitute defamation. An assessment of skills, habits and personal qualities is necessarily an expression of an opinion by the evaluating body.
On the other hand, if the employee is accused of stealing at workplace or falsifying documentation – these are assertion of fact that must be necessarily true or untrue and which, if not true, may give rise to a claim for defamation.
The distinction between a statement of opinion and fact is not always easy. However, the courts tend to strictly apply the civil code language, finding that ridicule can be defamation just as much as other, harsher falsities, such as accusations of fraud, stealing, etc. In one case, the court found defamation where the magazine publisher described a high-ranked employee is being “out for a fast back,” holding that this kind of description is likely to injure the claimant’s professional reputation. Cameron v. Wernick (1967)