White v. Blue Cross and Blue Shield of Mass., Inc. (Massachusetts Supreme Judicial Court)

This case raises the issue whether Massachusetts should recognize the tort of compelled self-defamation, in which a discharged employee seeks recovery for feeling compelled to repeat his former employer’s false and defamatory reasons for discharging him to prospective employers.  Roy Albert White was an employee of Blue Cross. White alleges that his supervisor told him that a client hospital had informed Blue Cross that White had divulged the details of a confidential financial settlement between the hospital and Blue Cross.  Blue Cross then terminated White’s employment for this reason.  White claims that the hospital’s statement was false, and that he has been compelled to repeat the false and defamatory reason for his discharge to potential employers.  Blue Cross successfully argued below that no Massachusetts court has recognized the claim of self-defamation, because defamation cannot exist in the absence of publication; that is, a statement made by the defendant to a third party. White appealed, and the Supreme Judicial Court has taken the case for direct appellate review.  NELF filed a brief in support of Blue Cross, arguing that compelled self-defamation is a questionable and much-criticized minority view that many jurisdictions and commentators have rejected. Expanding defamation law, NELF argues, would expose employers to potentially widespread liability for exercising their prerogative to terminate an at-will employee, and would endanger the public interest in open communication between employer and employee concerning performance-related issues, to the detriment of employer and employee alike.  White has argued that recognizing the tort of self-defamation is necessary to provide a remedy to an employee who has been discharged for false and defamatory reasons and who is unable to secure a new job, because he is compelled to repeat these reasons to prospective employers.  Many jurisdictions have recognized the tort.  NELF argues that White does indeed have a remedy.  He could have sued the client hospital for defamation and/or for tortious interference with contractual or advantageous business relationships.  White has apparently foregone these available remedies to challenge his legal status as an at-will employee.  NELF argues that Blue Cross could have terminated White for any reason, including the fact that a significant customer was unhappy with his services, without having to investigate the factual basis of the customer’s unhappiness.  White attempts to subject a purely private conversation between an at-will employer and employee to judicial scrutiny under defamation law by disregarding the publication requirement.   If allowed to proceed with his strained theory of recovery, NELF argues, White will have effectively converted an at-will relationship into one of termination for cause only.