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Who’s lying? Avoiding retaliation claims can be tricky

It’s tough to make employment decisions when you can’t be confident that the facts are known. And facts are often hard to figure out with absolute certainty. Recently, a group of attorneys focusing on employment matters tackled a question from an employer about how to handle an employee who accused his manager of disability discrimination and then said he made up the charge. 

The case sounds easy to decide: The employee made a serious accusation of unlawful conduct on the part of the manager; the employee then admitted it was all a lie; firing is justified.

Or is it? Complicating the situation is the fact that the manager’s response to the employee claiming discrimination was to apologize to him. Why apologize if the accusation was false? Mark M. Schorr, an attorney with Erickson | Sederstrom, P.C. in Lincoln, Nebraska, advises the employer to proceed cautiously.

The employer reported that the employee first claimed his manager made jokes about his disability in violation of the Americans with Disabilities Act, and he threatened to file a complaint with federal agencies. The employer investigated the claim, and the manager apologized to the employee. The employee then said he made it all up, and the employer wanted to know if it could face a retaliation claim if the employee is fired.

Schorr says the law is well settled that an employee who files a discrimination or harassment claim that’s ultimately discredited or disbelieved is still entitled to protection from retaliation and cannot legitimately be terminated if he had a good-faith belief that he was exercising his protected right to file a complaint.

“However, the law is equally well settled that employees who file false allegations of harassment, lie to company officials during an internal investigation, and potentially defame coworkers are not protected from discipline or termination,” Schorr says. But the manager’s apology “gives some credence to the notion that something occurred.”

“Therefore, you must at least consider the fact that the employee may have retracted his allegations in an attempt to please his manager or avoid retaliation for filing the complaint,” Schorr says. “And if he was less than truthful once, there’s always the chance that he may be less than truthful again, change course, and file a retaliation claim after he is terminated, if that’s the course you take.”

Steve Jones, an attorney with Jack Nelson Jones, P.A. in Little Rock, Arkansas, agrees firing the employee may be risky and points out that the employee’s retraction of the accusation and the manager’s apology “create a paradox.”

“You should discuss and analyze with your legal counsel the reasons for and the motives behind the behavior of everyone involved before deciding to terminate the employee for lying,” Jones says.

Jason S. Ritchie, an attorney with Ritchie Manning LLP in Billings, Montana, also advises the employer to further investigate the employee’s about-face. “Make sure he wasn’t coerced or otherwise influenced by his manager to recant the story. If there was no coercion or misconduct, a false report is certainly grounds for termination.”

Jacob M. Monty, an attorney with Monty & Ramirez LLP in Houston, Texas, says a thorough investigation is necessary when discrimination is alleged and “it’s even better to have an employment attorney conduct one for you.” He says to consider a number of questions: “Did your investigator interview both the employee and his manager as well as any witnesses, and ask for handwritten statements from each person? Did you review any other relevant evidence (e.g., e-mails)? After the investigation, did you produce a document explaining your findings? Such a document should reference the relevant antidiscrimination policy and reiterate that employees who report discrimination will not be retaliated against.”

Peyton Irby, an attorney with The Kullman Firm in Jackson, Mississippi, points out that the employer can discipline the employee for making a false report. “However, because the employee could easily deny that he recanted his statement and then bring a retaliation claim against your company, you should follow the ‘deep breath’ rule—as in take a deep breath and gather the facts before you decide to discipline him.”

Irby also suggests considering a few questions before taking action. “For instance, was he willing to sign a statement admitting that he fabricated the accusations against his supervisor? Is he an otherwise productive employee? Has the same situation occurred with any other employees in the past, and how did you respond? Make sure you have plenty of evidence to back up whatever action you decide to take.”