Threatening Discipline for False Complaints
Employers sometimes wonder what recourse they have against a current employee who’s filed a false claim of discrimination against the company. The answer tends to be very little. This isn’t because the law favors false discrimination claims, but because it’s very hard to prove malicious intent, government agencies are seldom moved by a company’s protestations of innocence, and the anti-discrimination laws would be ill-served if legitimate claimants were kept from asserting their rights. A case decided the Second Circuit Court of Appeals on July 23, 2014, Cox v. Onondaga County Sheriff’s Dep’t, didn’t present these usual grounds for caution, because there seemed little reason, on the record before the court, to doubt that the plaintiffs’ motives were pernicious. Although presenting a unique set of facts, the decision still provides a partial framework for considering malicious or cynical claims.
In Cox, Caucasian plaintiffs submitted an internal complaint of racial harassment against an African-American colleague, and the employer conducted an investigation. After the investigation found no first-hand evidence of harassing conduct, the plaintiffs filed materially different complaints, under oath, with the Equal Employment Opportunity Commission (EEOC), that claimed they had experienced harassment first-hand. The employer conducted another investigation, not only of the harassment claim, but of the possibility that the plaintiffs had filed false reports. The EEOC ultimately dismissed the plaintiffs’ complaints, and plaintiffs did not pursue their harassment claims further; the employer, however, continued its own investigation, and warned each plaintiff during investigatory interviews that disciplinary action was being considered against them based on the falsity of their EEOC filings. The plaintiffs were not, however, disciplined. In a second round of filings, the EEOC found the threat of discipline itself was retaliatory, and the plaintiffs sued in federal court. The court dismissed plaintiffs’ claims on summary judgment on the ground that they had not suffered an adverse employment action, and they appealed.
On appeal, the Second Circuit found it “fairly obvious” that plaintiffs had stated a prima facie case of retaliation, because they had been threatened with discipline for filing complaints with the EEOC. However, the court seemed satisfied on the record before it that plaintiffs’ EEOC complaints were false, and intentionally so, and concluded that it was “completely reasonable” for the employer to warn them of potential discipline, especially because the employer believed that the complaints had been fabricated to harass a colleague. This allowed the court to sidestep the ongoing debate between other appellate courts, one holding that employers have no authority to unilaterally punish abuses of the EEOC process, and another holding that employees were not permitted to use EEOC complaints as a tactical coercive weapon to advance their own retaliatory agendas. The court concluded, “It would therefore be anomalous to conclude that an employer is not allowed to investigate, with a view to discipline, false complaints of harassment that themselves might be viewed as intended as racial harassment.”
We should be careful, however, not to read too much into this decision. As an initial matter, the court had no occasion to consider the application of the National Labor Relations Act (NLRA), both on jurisdictional grounds and because the plaintiffs were public employees not subject to NLRA protection. In a private workplace, we might expect arguments that the plaintiffs were speaking out for their mutual aid and protection, which the National Labor Relations Board often regards as protected conduct even in a non-union environment. The debate in such a case might then have shifted to whether a knowingly false discrimination charge was entitled to legal protection, and whether the employees were even arguably speaking out on behalf of colleagues.
It’s also important to remember the Second Circuit’s distinction between internal complaints of discrimination, and those filed with the EEOC. Unlike EEOC complaints, internal complaints of discrimination only qualify for statutory protection, at least in the Second Circuit, if they’re motivated by a reasonable, good faith belief that discrimination has occurred. Although management should still respond respectfully, even if the internal complaint is patently frivolous, there may be reason, depending on the individual circumstances of the dispute, to conclude that discipline is warranted.
Further, even under Title VII, the fact that a manager maybe upset about claims of discrimination, and be convinced that the accuser has a malicious agenda, may be understandable, but is not enough reason to threaten discipline. In Cox, the employer happened to have written evidence of perjury, and so its threat of discipline was “completely reasonable,” but very few internal investigations are presented with such compelling evidence. More often, the investigator has to sort through poorly-remembered or confused accounts, inconclusive evidence, and emotional allegations that may be misguided but are not insincere – threats of discipline would generally then be inadvisable. However, where the employer does find evidence that the employee may have committed perjury, or may have filed a false claim for purposes of harassing a coworker, truthfully informing the employee that an investigation is underway, and what its consequences may be, can be appropriate.