Can Employees Be Disciplined for Filing a False Harassment Claim?

What happens when one of your employees fabricates a sexual harassment claim? A California appellate court recently ruled that an employee who fabricates a sexual harassment claim can be disciplined. Though certain circumstances may warrant disciplinary action, proceed with caution because such discipline could result in a retaliation claim. Joaquin v. City of Los Angeles, 202 Cal.App.4th 1207 (2012)

Independent Review Found Fabricated Claim

The abbreviated facts:

• Richard Joaquin, a Los Angeles Police Department (LAPD) police officer, is told by his supervisor, Sergeant Sands, that he might be disciplined for leaving a shift early.
• Right after learning this news, Joaquin charges his sergeant with same-sex harassment claiming that Sands made sexually suggestive comments to him.
• The LAPD’s Internal Affairs Group conducts an investigation and determines the harassment allegations are unfounded.
• In turn, Sands complains that Joaquin filed a false complaint against him and gave false information during an official investigation.
• Various internal investigations lead the LAPD to fire Joaquin for a false accusation of sexual harassment made to avoid disciplinary action. The decision is upheld during a Board of Rights Hearing – a formal proceeding by two sworn officers and one civilian.
• Joaquin sues the LAPD, alleging that his termination happened in retaliation for his sexual harassment complaint. The LAPD argues that he is terminated for fabricating the claim.

The question: Can Joaquin be disciplined if the LAPD concludes that he fabricated a claim of sexual harassment? Or is his complaint insulated from discipline under anti-retaliation laws even when the LAPD determines the complaint was fabricated?

A jury believed Joaquin’s termination was retaliatory and awarded him more than $2 million for lost wages and emotional distress.

Court Finds Termination Decision Lawful

The Court of Appeal reversed the jury’s award and ruled in favor of the LAPD. Per the court, if an employee makes false charges of harassment, an employer who terminates that employee because of the false charges has not engaged in retaliation.

Employers are forbidden from discriminating against an employee who participates in discrimination or harassment investigations. But the employee is not insulated from being disciplined for conduct that, if it occurred outside an investigation, would warrant termination or other discipline.

“For 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 stated. An employer may discipline for false charges of harassment under “appropriate circumstances.”

“The anti-discrimination 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 said.

But if the stated reason for discipline, fabricated charges, is really a pretext for improper retaliatory intent, disciplining the employee for his or her complaint will clearly be unlawful. After reviewing the evidence, the court was unable to find that the LAPD’s decision to terminate was motivated by retaliatory intent. The LAPD’s Internal Affairs Group conducted an independent and thorough investigation, there was no evidence of bias, the conclusion was reasoned, and an independent review board also heard from witnesses and provided a full hearing on the termination decision.

Implications

The court’s ruling allows employers to discipline for false claims and is consistent with some federal decisions allowing the same. But employers should be wary about taking such action except in the most blatant of instances and, even then, only with the advice of counsel. It is likely that such action will result in the employee claiming retaliation. Unless you have strong evidence of fabrication, you are in for a long litigious road.

Though the LAPD was ultimately vindicated by the court in this case, it wasn’t until after five years passed and the LAPD was dragged through administrative proceedings and a jury trial.

Best Practices:

• Investigate all claims of harassment and discrimination. Be thorough and follow up on all information relevant to the claim.
• Document the investigation.
• Use an independent, unbiased investigator. Often an outside investigator is your best option, especially if concerns arise that the employee has created a blatant fabrication with the intent to avoid disciplinary action.
• Only consider disciplinary action in those exceptional circumstances where the complaint was explicitly false and motivated by intent to harm the other employee or avoid disciplinary action and only after seeking advice of counsel.