In Visnick v. Caulfield, the Massachusetts Appeals Court held that the absolute privilege defense to a defamation claim protected statements made by a former employee in a sexual harassment complaint, as well as statements made in a letter to her employer about the alleged harassment.

Jeanette Caulfield began working for a hotel in 2003, and was supervised by assistant restaurant manager Gary Visnick until she resigned in 2004. At the suggestion of a different manager, Caulfield reapplied for employment with the hotel several months later. Visnick conducted a one-on-one interview with Caulfield for the position, and immediately following the interview, Caulfield complained to the hotel management that Visnick had sexually harassed her during the interview and during her previous employment. Caulfield withdrew her application and subsequently sent a letter about the sexual harassment to the hotel’s general manager, with copies to its legal and human resources departments. The letter alleged that Visnick’s conduct was the reason for her resignation in 2004 and that she was constructively terminated. Caulfield then filed a charge of discrimination with the EEOC. The parties settled the matter through mediation, and Caulfield took no further action against the hotel or Visnick.

On March 9, 2006, Visnick filed a complaint in the Superior Court against the hotel and Caulfield, alleging, among other claims, wrongful termination and defamation. Caulfield responded with a counterclaim for retaliation in violation of Chapter 151B and sought summary judgment, claiming that the absolute privilege defense barred all counts against her. The lower court denied Caulfield’s motion, but on appeal, the Court held that statements made by a party, counsel, or witness during the course of a judicial proceeding are absolutely privileged and cannot be the basis of a defamation claim if they relate to that proceeding, even if they are uttered “with malice or in bad faith.” The Appeals Court added that “[w]here a communication to a prospective defendant relates to a proceeding which is contemplated in good faith and which is under serious consideration, . . . the privilege should attach,” noting that EEOC proceedings “are sufficiently judicial in nature for the application of the privilege.” The Court therefore declared the statements in Caulfield’s complaint and her letter to the hotel privileged and, accordingly, dismissed all of Visnick’s claims against Caulfield.

This case reaffirms that the absolute privilege protects not only statements made by former or current employees in contemplation of a lawsuit, but also statements made by employees to employers or former employers in EEOC or MCAD charges.