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Labor: How to avoid defamation and reverse discrimination claims when investigating harassment

Employers can follow these steps to reduce their potential liability

The last thing an employer needs is to be sued by an employee being accused (and possible guilty) of harassment. However, this can easily occur unless the employer conducts its investigation carefully and implements its discipline of the harassing employee in a fair and consistent fashion. By taking a few considerations into account, employers can significantly reduce their potential liability stemming from their treatment of an alleged harasser.

A claim for defamation requires the publication of a false statement by the employer to a third person that damages the reputation of the employee. In the employment context, communications between supervisory and non-supervisory employees constitutes “publication.” Therefore, to limit exposure to such claims, employers should keep internal reports of harassment investigations as confidential as possible.

Reverse discrimination refers to the discriminatory effects that certain employer actions have on non-minorities. The easiest way for employers to avoid reverse discrimination claims is to treat all their employees in a consistent and similar fashion. Among the most common (and easy) methods to demonstrate that an employer’s explanation is illegitimate is to show that similarly situated persons of a different protected class received more favorable treatment. Therefore, employers must have a rational, well-articulated and, preferably, documented reasons supported by all available evidence to justify any disciplinary action.

Moreover, before any disciplinary action is taken against a harassing employee, the employer must make sure that similar disciplinary action was taken against another harassing employee who engaged in similar conduct.


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Jason Tremblay

E. Jason Tremblay is a partner in the labor & employment practice at Arnstein & Lehr LLP. He represents a diverse client base...

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