Texas Supreme Court Rejects Claim of Compelled Self-Defamation Over Failed Drug Test

Written By ESR News Blog Editor Thomas Ahearn

On May 26, 2017, the Texas Supreme Court delivered an opinion rejecting a claim of “compelled self-defamation” and declining to “recognize a theory of compelled self-defamation in Texas” in a case where a worker who failed a random drug test filed a lawsuit claiming defamation since he would have to report his job loss for a failed drug test to future employers.

With the opinion delivered by Justice Jeffrey V. Brown, the Texas Supreme Court joined several other states that include Connecticut, Hawaii, Iowa, Massachusetts, New York, Pennsylvania, and Tennessee in rejecting claims of compelled self-defamation. However, other states – such as California and Colorado – recognize claims for compelled self-defamation.

The “complex employment-discrimination case” arose from Gilberto Rincones, a refinery technician, failing a random employment-related drug test in 2008. Rincones tested positive for marijuana use but claimed he did not use illegal drugs, arguing the sample tested was not his and complaining of “questionable testing procedures he witnessed when he gave the sample.”

Rincones filed a discrimination charge and sued his employer, WHM Custom Services, Inc.; the refinery owner, Exxon Mobil; and the drug-testing administrator, DISA, Inc. After a trial court granted summary judgment against him, Rincones appealed and the case went to the Texas Supreme Court where Justice Brown held that “Texas law recognizes no claim for compelled self-defamation.”

Justice Brown wrote: More than half a century ago, we reaffirmed the rule “that if the publication of which the plaintiff complains was consented to, authorized, invited, or procured by the plaintiff, he cannot recover for injuries sustained by reason of the publication.” Declining to recognize compelled self-defamation is a natural extension of this rule.

Justice Brown continued: Further, were we to recognize compelled self-defamation, we would risk discouraging plaintiffs from mitigating damages to their own reputations. Allowing the claim could enable any employee who disagrees with his employer’s reason for firing him to unilaterally create an actionable tort against the employer.

A compelled self-defamation claim would also impinge on the at-will employment doctrine in Texas: “For well over a century, the general rule in this State, as in most American jurisdictions, has been that absent a specific agreement to the contrary, employment may be terminated by the employer or the employee at will, for good cause, bad cause, or no cause at all.”

In addition, Justice Brown concluded: Recognizing compelled self-defamation could also stifle workplace communication by “chill[ing] honest evaluation and communication about employee performance, as employers strive to protect themselves from defamation claims by adopting policies of providing only ‘name, rank and serial number’ references.”

The opinion in EXXON MOBIL CORPORATION, WHM CUSTOM SERVICES, INC., AND DISA, INC., PETITIONERS, v. GILBERTO RINCONES, RESPONDENT, No. 15-0240, delivered in the Court of Appeals for the Thirteenth District of Texas on May 26, 2017, is available at http://docs.texasappellate.com/scotx/op/15-0240/2017-05-26.brown.pdf.

“The idea behind ‘compelled self-defamation’ is that if an employee is terminated for a false reason, they may be compelled to repeat those false reasons to a future employer and therefore they were compelled to commit defamation on themselves,” explains Attorney Lester Rosen, founder and CEO of background check firm Employment Screening Resources® (ESR).

ESR Blogs on State Laws Such as Compelled Self-Defamation

Along with the federal Fair Credit Reporting Act (FCRA), employers have a multitude of state laws to contend with when conducting background checks with a third-party background check providers such as Employment Screening Resources® (ESR). To read more ESR News blogs about state laws for background checks, visit  www.esrcheck.com/wordpress/tag/state-laws/.

NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.

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