Most sexual harassment policies include some kind of a warning about what could happen to an employee who makes a false accusation of harassment. The clause is not meant to discourage harassment claims but to ensure that employees do not use the potentially career-ending allegation of harassment as a way of exacting retribution for personal disputes.
A recent federal court of appeals decision from Missouri (which governs employers in the Midwest and north-Midwest states) helped clarify when employer may take action for falsely reporting harassment.
The male employee was the subject of a complaint by a female co-worker who reported that the male had gotten angry with her when they were discussing a policy matter. At the same time, the male reported to the HR department that the female had asked whether he had a girlfriend, made inappropriate sexual comments to him and that she had engaged in affectionate contact such as hugging or placing her head in his lap, He also said she had shown up one Sunday morning and asked to take him to church.
During the investigation, the female employee denied the allegations saying the male employee was pursuing her. She also produced a hand-drawn map the male had given her showing how she could get to his house. When confronted with this evidence, the male said: “I guess I was wrong for doing this.” The city ultimately fired him not only for making a false report but for his history of losing his temper on the job. A disciplinary board upheld the termination. The male employee sued claiming his termination was in retaliation for reporting the female employee's sexual advances.
Citing one of its prior decisions, the court of appeals explained why this case was one of the unusual situations where the court of appeals could hold as a matter of law the employer honestly believed the employee had made a false harassment complaint. The court of appeals contrasted the facts in this case with the situation that occurred in a 2005 case. Gilooly v. Mo. Dep’t of Health and Senior Servs., 421 F.3d 734 (8th Cir. 2005).
In Gilooly, the court had said a jury had to resolve whether the employer had retaliated against an employee who was terminated when the employer decided she had made a false harassment complaint. That decision, the latest decision explained, was made because the employer’s disbelief in the employee was founded solely on the statements of other employees and witnesses rather than on independently verifiable evidence or independent corroboration . . . from neutral non-parties. So, under this rule, "when an employer is presented with a 'he said, she said' set of facts involving two employees, and the employer chooses to disbelieve and discipline the employee who had engaged in protected opposition to unlawful activity, then the employee’s claim of retaliation must go to a jury."
What tipped the balance against sending the case to the jury was that the employer had "hard evidence" (the hand drawn map and the male's admission) that the male's complaint was false. It was also relevant that the independent review board upheld the employee's termination.
The holding in this case and the 2005 decision shows that it is probably a bad idea to impose discipline in any "he said, she said" situation. Rather, before an employer disciplines an employee for falsely reporting harassment, the employer is well-advised to have have compelling and independently verifiable evidence that the report is false.
No comments:
Post a Comment