Employment Practices – Part 1

A New York court ruled that disparaging statements made by a minister about a member of his congregation when asked by a prospective employer for a reference were not defamatory.

Church Law and Tax2002-03-01

Employment Practices

Key point 4-02.03. A number of defenses are available to one accused of defamation. These include truth, statements made in the course of judicial proceedings, consent, and self-defense. In addition, statements made to church members about a matter of common interest to members are protected by a “qualified privilege,” meaning that they cannot be defamatory unless they are made with malice. In this context, malice means that the person making the statements knew that they were false or made them with a reckless disregard as to their truth or falsity. This privilege will not apply if the statements are made to nonmembers.


* A New York court ruled that disparaging statements made by a minister about a member of his congregation when asked by a prospective employer for a reference were not defamatory because they were protected by a qualified privilege and had not been made with malice. A woman sued her minister for defamation as a result of a reference he provided on her behalf to a prospective employer (a college affiliated with her church). The minister informed an employee of the college’s personnel department that the woman was an "unstable person" and that "her children are disturbed." The court ruled that these statements were not defamatory since they were protected by a "qualified privilege." Many courts have concluded that the law should encourage members of churches and other organizations to share with each other about matters of "common interest" without undue concern about being sued for defamation. As a result, many courts have ruled that church members are protected by a qualified privilege when sharing with other church members about matters of mutual concern or common interest. This means that such communications cannot be defamatory unless made with "malice." Malice in this context means that the person who made the allegedly defamatory remark knew that it was false, or made it with a reckless disregard as to its truth or falsity.

The court concluded that statements made by the minister to the college personnel department were protected by the qualified privilege based on a common interest, and that the minister had not been guilty of malice and therefore his comments were not defamatory. It concluded,

Such statements were protected by a qualified privilege, the issue being whether plaintiff’s allegations of malice are sufficient to overcome the privilege, i.e., sufficient to permit an inference that defendant "acted out of spite or ill will, with reckless disregard for the statements’ truth or falsity, or with a high degree of belief that [his] statements were probably false." They do not. Upon the basis of the complaint, as amplified by plaintiff’s opposition, the only reasons offered for inferring malice are the falsity of the statements and plaintiff’s refusal on an earlier occasion to take [the minister’s] advice to reunite with her ex-husband. However, neither falsity nor the existence of prior earlier disputes between the parties permit an inference of malice as above defined. While the statements were frank, the expressions used were not beyond what was necessary for the purposes of the communication, both speaker and listener having a common interest in plaintiff’s character and fitness as a prospective teacher and promoter of their faith, or otherwise "so vituperative" as to warrant an inference of malice …. [S]uspicion, surmise and accusation are not enough to infer malice.

Application. Many states recognize the "qualified privilege" defense to defamation. As this court noted, this defense applies to statements concerning matters of "common interest." The court concluded that matters of faith, and a person’s fitness to teach in a church-affiliated school, were matters of common interest. As a result, statements concerning such matters cannot be defamatory unless made with malice. This is a very difficult standard to prove, which means that communications addressing matters of common interest generally will be defamatory only in exceptional cases. Sborgi v. Green, 722 N.Y.S.2d 14 (Sup. Ct. 2001).

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