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Are false harassment claims protected? Excerpted from New Mexico Employment Law Letter, written by attorneys at Tinnin Law Firm, A Professional Corporation October 14, 2005 Q: I am the HR director for an electronics assembly plant. Recently we received a sexual harassment complaint from one of our employees. He claimed that his immediate supervisor continually pressured him to have sex with her and threatened to have him fired when he rejected her advances. Our HR department immediately conducted an investigation. After extensive questioning, the employee admitted that he had falsely accused his supervisor. He said he made the complaint because his supervisor had rejected his sexual advances and he decided to get even with her. We ended our investigation and issued a written warning to the employee for making the false accusations. The employee almost immediately filed a sexual harassment charge with the Equal Employment Opportunity Commission (EEOC), including a claim that we retaliated against him for complaining about harassment. The EEOC referred the claim to the New Mexico Human Rights Division (NMHRD) for investigation under its work-sharing agreement. We shared the results of our internal investigation with the NMHRD and provided a statement from another employee who came forward to say that the complaining employee had said he "would do anything" to get rid of his supervisor. The division dismissed the charge. I don't believe that we should permit anyone to get away with filing a totally false sexual harassment or other discrimination charge. Can I fire him for filing the charge? A: That's a frequently asked question, and employers are usually shocked to learn that under the majority position adopted by most courts, an individual filing a discrimination or sexual harassment charge is protected from retaliatory action by an employer — even if the claim is factually baseless or even false. The reasoning is that the law must extend absolute protection to individuals who file a charge so they won't fear retaliation if their charge is later determined not to have merit. Under some circumstances, however, you may fire the employee for lying during the internal investigation. But there has been no New Mexico ruling directly on that point, so it would still be highly risky to take that action. Opposition vs. participation Title VII of the Civil Rights Act of 1964 and the New Mexico Human Rights Act (NMHRA) protect two categories of employee activity from employer retaliation — opposition to unlawful practices and participation in an investigation or the filing of a charge. Opposition. The so-called "opposition" clause protects informal protests of discriminatory employment practices, such as making complaints to management or HR personnel, expressing support to co-workers who have filed charges, threatening to file a charge or other formal complaint, or requesting a reasonable religious accommodation. Decisions are clear that for the opposition claims to be entitled to protection, an employee must oppose the practice subject of the charge with a "reasonable and good-faith belief" that the underlying discrimination is unlawful. The reason less protection is afforded is because under the participation clause, the integrity of the statutory process itself, i.e., filing a charge or participating in an investigation, is at stake while the opposition clause extends only to indirect efforts. Participation. Title VII and the NMHRA also prohibit retaliation against any individual because he has filed a charge or complaint or testified, assisted, or participated in any manner in an investigation or proceeding under either law. That protection is referred to as the "participation clause." The EEOC and most courts, including the Tenth Circuit, have adopted the position that an individual who files or participates in an investigation of a charge is protected regardless of the reasonableness or good-faith belief of the charge or complaint. A recent decision by the Seventh Circuit (which hears cases from Illinois, Indiana, and Wisconsin) rejected that position and ruled that the same "good-faith" standard applies to both opposition and participation. The court stated that to be protected against retaliation, activity under both the participation and the opposition clauses must not be "utterly baseless." Internal investigation vs. response to formal charge Some courts draw a further distinction when the false statements in a charge or complaint are also made outside of the formal processing of the complaint or charge. The employee may lose the protection from retaliation for filing a false charge if he repeats the accusations outside the context of the processing of the discrimination claim itself. Thus, some courts have upheld the discharge of an employee who lies during an internal investigation of a charge. One court decided, however, that an employee's participation in an internal investigation of an EEOC charge that took place in direct response to the agency's request for information was protected as "participation." But the court refused to extend that decision to include internal investigations conducted apart from a formal charge with the EEOC, such as an internal sexual harassment investigation conducted before any EEOC charge is filed, as was your situation. Bottom line You may not fire an employee who files a false discrimination or sexual harassment charge even if its falsity is admitted. You may be able to discharge an employee who makes false accusations in the course of an internal investigation, at least if the internal probe is otherwise unrelated to a formal discrimination charge or complaint. But even that action poses significant risk in New Mexico. Copyright © 2005 M. Lee Smith Publishers LLC. This article is an excerpt from NEW MEXICO EMPLOYMENT LAW LETTER. New Mexico Employment Law Letter is published to provide information of general interest and not to provide legal advice regarding any specific situation. Questions and inquiries directed to specific applications of the information contained in the newsletter should be addressed to an attorney.
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