Preventing legal challenges that can plague your business

By Patricia S. Eyres

Business professionals in every industry make presentations every day. Whether they’re addressing the board of directors, speaking at a company staff meeting or reviewing assignments with a few key employees, they’re delivering a message to those who need to hear it. 

When preparing for these business presentations, most people focus on substance and delivery. They want to get their point across in the most effective manner. Unfortunately, during their presentation planning phase, many professionals overlook the legal risks and responsibilities that may impact their presentations at meetings and conferences.

The fact is that organizations are legally responsible for all activities that occur in their workplaces – or at company-sponsored events – and the presenter may also be personally at risk for unlawful content. 

That’s why planning what you’re going to say and knowing the possible legal ramifications of your words and actions are so important. Below are the three most common charges that fall upon the business community. Familiarize yourself and your staff with them so you can avoid these legal incidents in the future.

Workplace harassment
Most professional meetings are mandated or integral to work-related activities. When attending one of these meetings, employees have a legal right not to be forced to hear unwelcome language or to view inappropriate graphics that are offensive due to sexual, racial, religious or other questionable content.

Harassment lawsuits arising from a business presentation typically involve jokes, insults, comments of a sexual nature or blatant innuendo. Visual harassment claims arise from cartoons, props, or other graphics that are demeaning, insulting or patronizing. 

In one recent incident, presenters from the U.S. Drug Enforcement Administration were sued individually over the content of their presentations to law enforcement officers, which included sexual innuendo and demeaning references to women in general and female audience members in particular. Certifying a nationwide class action, the judge concluded that the presentations created a “sexually harassing training environment.”

In addition to overtly inappropriate language, even subtle demeaning content can turn audiences off the presenter's message and onto litigation. These include mimicking accents, using reference in stories or hypotheticals to marginal performers by fictional names such as “Pedro” or “Blondie,” referring to older people as “dinosaurs” or “Geritol set,” making a particular group of people the brunt of jokes either verbally or with a visual cartoon or prop, and using intolerant gestures to mimic people with various physical disabilities.

While jokes are often used in the workplace as icebreakers or to establish rapport, it’s important to know that some humor is inappropriate and may backfire when the subject is serious, such as violence prevention, change management, or downsizing. For example, jokes about an aging workforce – when apparently condoned by management – can lead to litigation during later downsizing.

Although personal liability for a single speech gone awry is rare, don't succumb to the it-could-never-happen-to-me syndrome. You may be proud of the laughs you get at a meeting, but a videotape of your performance may be Exhibit A in a discrimination lawsuit…and the jury may be less amused.

Content that damages reputations
If you falsely refer to a person’s business abilities, work performance or lifestyle, you may face a defamation of character claim. A statement is considered “defamatory” in most states if it causes injury to a person’s reputation, exposes the person to public hatred, contempt, ridicule, shame or disgrace, or has an adverse effect in trade or business. 

Even comments that an employee “suddenly resigned” or was terminated for unspecified reasons constituting “unsatisfactory performance” have been considered sufficiently negative to be construed as defamatory statements when they are false or made with reckless disregard of the truth. When customizing your materials to include anecdotes or other stories about real people in the organization or industry past or present, carefully verify your facts in advance.

Absence of intent to harm won’t be a complete defense if a private individual challenges you. Presenters who make false statements of fact about a private person may be liable for resulting damage, even if the errors are from careless fact checking. 

Presenters enjoy wider latitude with statements about public figures, however, because the public figure must prove both falsity and malice before they can successfully sue for defamation. In either case, hyperbole and figurative statements are not unlawful in most cases because, when taken in context, a reasonable person understands the presenter is using language to emphasize a point of view. Even so, disparaging remarks cast as fact about people or products are risky.

A photograph can also be defamatory if it doesn't accurately reflect the original image or is displayed in a context suggesting a false fact. Alterations of photographs have been considered defamatory in print media, such as where a picture of a woman was altered to make it appear that she was bald, and where a photograph of a female model was juxtaposed with a picture of an elderly male holding a “dirty book.”

With new technologies, photographs can be scanned into digital format then altered or displayed with offensive or false captions. Presenters should carefully consider the legal ramifications of using photographs either for amusement or to make serious points. 

Some ways to limit the potential for a lawsuit or workers’ compensation stress claim include obtaining permission from anyone depicted in a photograph before displaying it during a presentation, making sure captions or descriptions of a photo are accurate, not using technology to distort the picture or alter it without express permission and a clearly appropriate purpose, and not making the subject of the photo the brunt of a joke unless you have express permission and it advances a relevant substantive point in your presentation.

Public disclosure of private facts
People have the right to expect that their private affairs will remain private. If a presenter interferes with an individual’s right to be free from unwarranted publicity, he or she may be liable for invasion of privacy. Unfortunately, invasion of privacy claims are a growing trend in lawsuits involving presentation content.

While liability is generally limited to advertisements or promotions of products or services rather than substantive presentations, unauthorized use of a person’s likeness or name for the presenter’s commercial advantage can result in an invasion of privacy lawsuit. Additionally, attributing specific views to an individual that he or she does not hold or describing actions the person did not take may also result in a legal challenge.

Even inadvertent disclosure of information about a particular employee has resulted in legal action. In one recent case, a trainer randomly accessed an e-mail message for demonstration purposes. The e-mail message, which belonged to the plaintiff, contained information of a personal, sexual nature. After the incident was reported to management, the plaintiff’s e-mail messages and those in her work group were reviewed. All employees who had misused the e-mail system were issued written warnings.

The employer prevailed by proving that its employees had no reasonable expectation of privacy in their e-mail messages. The court’s decision was based on a specific written policy that notified employees their e-mail was subject to random employer monitoring. The affected employees had signed waivers stating “it is company policy that employees and contractors restrict their use of company-owned computer hardware and software to company business.” This saved the day for the employer, but presenters should be alert to potential intrusions for which the subject may assert a reasonable expectation of privacy.

The courts balance the business justifications for the disclosure against the subject's reasonable expectation of privacy. Therefore, your legal risk of liability depends on the extent and degree of the intrusion and the justification for use. Protect yourself by establishing a specific reason to disclose the information in your presentation, evidence of your reasonable safeguards against abuse of private information, or express permission from the subject.

No company can afford the monetary or negative publicity costs of a lawsuit. To keep your company safe, educate your employees on the legal risks and consequences of any presentation they make. The more your employees know about what to avoid, the safer your company will be from legal action.

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