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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.

Only employees in a legitimate “need to know” position should receive or have access to a copy of the written investigative report. Moreover, the disclosure of facts relevant to the harassment investigation should be limited to those in a “need to know” position. Employers also should emphasize to all those involved in the investigation, including the complainant, the accused and any witnesses, that company policy requires them to keep discussions of the investigation confidential and that disciplinary consequences may result from a breach of this policy.

Additionally, even where harassment is determined to have occurred, those responsible for the investigation should be careful to avoid making any accusations or unfounded statements, whether written or oral. In order to ensure against incurring liability, employers should make every effort to avoid using potentially defamatory terms in their investigatory reports and during the underlying investigation. For example, it is more prudent to say that an employee has failed to comply with a particular employment policy than that the employee is a “sexual harasser.” Such statements could give rise to a defamation suit against the employer.

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.

Put another way, the employer’s failure to administer comparable discipline may result in claims by the alleged harasser. Thus, all material circumstances being equal, if a non-minority white employee is terminated for sexually harassing a female coworker, a minority black employee who engages in similar conduct should also be terminated. Any harsher treatment of the non-minority white employee could lead to a reverse discrimination lawsuit (just as any harsher treatment of the black employee could lead to a discrimination claim). Therefore, treating similar situations in a similar fashion is paramount to avoiding reverse discrimination claims.

Overall, in order to avoid defamation and reverse discrimination lawsuits by an alleged harasser, an employer must conduct its investigation in the most confidential manner possible and be extremely careful about how it characterizes the harassing employee. In addition, an employer’s disciplinary measures of its harassing employee should always be uniformly administered and readily justifiable.

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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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