108 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com a close relationship with people who have been stopped, arrested, or convicted of a crime, (4) neighborhood of residence, (5) having a child outside of marriage, (6) receiving state benefits, (7) not being a native English speaker, (8) ability to speak another language, (9) dress, attire, or personal appearance, (10) employment in a field disproportionately occupied by members of a race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or that a serves a population disproportionately composed of members of such a group, (11) unemployment or underemployment, or unemployment or underemployment of the prospective juror’s family member, (12) apparent friendliness with another prospective juror of the same race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation.291 The law will presume that these reasons for excluding jurors are improper proxies for unlawful discrimination unless the party exercising the peremptory challenge can show by “clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups.”292 To make peremptory jury strikes even harder, the new law proclaims that certain reasons for peremptory challenges “have historically been associated with improper discrimination,” such as the prospective juror (a) being inattentive, or staring or failing to make eye contact, (b) exhibiting either a lack of rapport or problematic attitude, body language, or demeanor, and (c) providing unintelligent or confused answers.293 The new law will deem these reasons “presumptively invalid unless the trial court is able to confirm that the asserted behavior occurred, based on the court’s own observations or the observations of counsel for the objecting party.294 Even with that confirmation, the counsel offering the reason shall explain why the asserted demeanor, behavior, or manner in which the prospective juror answered questions matters to the case to be tried.”295 5.8 Defamation Claims In 2020, the Court of Appeal reinstated a $6 million defamation award as not duplicative of a wrongful termination award, in that the damages awarded for the wrongful termination claim were for only past and future lost earnings due to the employee’s discharge and the damages for wrongful termination did not include a component for reputation damages.296 5.8.1 Self-compelled publication Ordinarily, a defamation claim requires proof that the defendant published the defamatory statement to third parties. In California, it’s different. California joins a few other jurisdictions in recognizing the doctrine of “selfcompelled publication,” applying when it is foreseeable that the defendant’s act would result in a plaintiff’s publication to a third person. For self-compelled publication to apply, the defamed party must operate under a strong compulsion to republish the defamatory statement, and the circumstances creating the compulsion must be known to the originator of the statement when the statement is made to the defamed individual. Suppose that an employer fires an employee for suspected theft, while privately reminding the employee that theft is a dismissible offense under company policy. Suppose further that the employee is not really a thief, but really just meant to borrow the company’s money. Suppose now that the fired employee, seeking a new job, feels compelled to tell prospective employers that theft was the reason that the prior employer gave for the dismissal. Peculiarly in California, these facts may create liability for defamation, even though the former employer never told anyone (other than the fired employee) about the theft, if the plaintiff was “compelled” under the circumstances to publish the defamatory statement. The doctrine of “self-compelled publication” has obvious implications for exit interviews. Employers have tried to avoid liability under this theory by following a strict policy against giving out any information about former employees except for the dates of employment. Such a policy would tend to undermine any contention that an employee reasonably felt compelled to disclose the prior employer’s reasons for terminating employment.297
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