Q: We strongly suspect an employee engaged in a control battle with her supervisor made a false sexual harassment complaint against him. She is talented but strong-willed and doesn't like to toe the line. He insists on on-time arrival and a full day's work, and had counseled her multiple times for arriving late and skipping out early.
When our HR officer let the supervisor know about the complaint, she learned the supervisor had just emailed the employee to meet in his office to discuss her late arrivals. What do we do with what we suspect is a false accusation?
A: With stakes this high, you can't afford a mistake. Retain legal counsel and immediately, thoroughly and without bias investigate this employee's allegations. Although your internal human resources officer can conduct the investigation, your attorney may suggest retaining a neutral, third-party investigator to prove the investigation is unbiased and interview the HR officer as she may provide useful information concerning motive. In an investigation like this, the investigator needs to assess whose story doesn't add up.
To protect the employee and supervisor, temporarily assign a different supervisor to this employee.
Once the investigation concludes, if you determine your employee made a false accusation and you have a policy that addresses this, you can terminate her. If you lack that policy, your attorney can guide you -- you may still be able to discipline or otherwise terminate the employee.
In a landmark 2012 case, a California appellate court ruled in favor of an employer who terminated an employee making a false accusation. Los Angeles Police Department officer Richard Joaquin complained Sergeant James Sands sexually harassed him by telling him he had nice arms, asking him to "go out some time" and commenting "You look nice standing there" at a traffic stop.
When Joaquin learned Sands planned to discipline him for leaving work early, Joaquin alleged the pending discipline was retaliation for rebuffing Sands' sexual advances. Internal Affairs investigated, concluded Joaquin's allegations had no foundation and the police department fired Joaquin.
Joaquin sued, alleging he was fired in retaliation for filing a sexual harassment complaint. The police department said Joaquin's false claim gave them a legitimate business reason for firing him.
According to the court, "the relevant legal question is whether an employee may be disciplined if his or her employer concludes that the employee has fabricated a claim of sexual harassment, or whether such a complaint is insulated from discipline even where, as here, the employer determines that it was fabricated."
The court ruled that the employer could terminate an employee for making a false sexual harassment, because the employee's complaint "doesn't insulate an employee from being discharged for conduct that, if it occurred outside an investigation, would warrant termination."
The court ruling added, "It cannot be true that a plaintiff can file false charges, lie to an investigator, and possibly defame co-employees, without suffering repercussions simply because the investigation was about sexual harassment." The court added, "The antidiscrimination laws were not designed to arm employees with a tactical coercive weapon under which employees can make baseless claims simply to advance their own retaliatory motives and strategies." The court also noted that although the review board made credibility determinations regarding who was telling the truth, no evidence showed those conclusions were unreasonable or motivated by retaliatory intent, and thus the termination was lawful.
Call an attorney, conduct a neutral, unbiased investigation and if you conclude your employee lied, take disciplinary action. Further, if you don't now have a policy against making false claims, write one.
-- Lynne Curry is a management trainer, consultant and president of Alaska's The Growth Company Inc. in Anchorage. Email her at lynne@thegrowth company.net