An element of a defamation claim is that the defamatory statement was published to a third party. Plaintiff-employees sometimes attempt to satisfy this element by arguing that, while the former employer never published any defamatory statements about the employee to a third party, the employee is compelled to self-disclose the reasons for his or her termination when seeking employment with subsequent employers. A few Texas courts of appeals have embraced the compelled self-publication theory. Today, the Texas Supreme Court rejected the theory holding that an employee’s self-publication of defamatory statements cannot satisfy the publication element of a defamation claim. The Court further confirmed that there is no independent cause of action for compelled self-publication defamation under Texas law.
In Exxon Mobil Corp., et al. v. Rincones, Rincones was terminated from employment after he failed a drug test. Rincones contended that he did not use drugs and that there must have been some negligence in the way the test was handled. He sued the defendants under a defamation theory claiming that his termination for a positive drug test constituted defamation because he would be compelled to publish the defamatory reasons for termination to prospective employers when asked why he left his former employment. In rejecting the compelled self-publication theory, the Supreme Court of Texas analyzed other state courts that had considered the theory and concluded that the majority of those courts had rejected its application. Additionally, the Court reasoned that adopting such theory could chill the honest evaluation and communication between employer and employee about the employee’s performance. And finally, the Court believed that accepting the compelled self-publication theory would “unacceptably impinge on the at-will doctrine” and is therefore “incompatible with Texas’s at-will employment system.” In the future, defamation plaintiffs will be required to show that the defendant actually published a defamatory statement to a third party to maintain a cause of action.
You can download the Court’s full opinion in Exxon Mobil Corp., et al. v. Rincones here.