What employers need to know when they suspect a worker of making false harassment claims

Q: We'd like to terminate "Betsy." She's a mediocre supervisor, a gossip and a pot-stirrer. She frequently closes her office doors to "chat" with employees, including those who work under other supervisors. We've counseled Betsy about this, as it's a productivity drain for both her and the employees, but she claims that employees see her as someone to vent to and that she defuses a lot of problems.

Worse, when Betsy doesn't like a fellow supervisor, she creates stories about them, and some of these rumors take on a life of their own. Recently, she got cross-wise with "Jack" and told us that she'd been told "in confidence" that he'd said sexually provocative things to two employees.

We immediately launched an investigation and forced Betsy to name the two employees. She initially insisted she couldn't as the employees had spoken to her "in confidence," but we told Betsy that harassment was a serious accusation and we had to get to the bottom of it. At the bottom, we found Betsy. Both employees said Jack had teased them, but never said anything sexual. When we told this to Betsy, she alleged that the investigation process had so intimidated the employees that they hadn't been willing to "go public" with what they'd told her.

We believe Betsy made up a story, but we're somewhat afraid to terminate her as she might be able to allege retaliation.

A: In June, a Fourth Circuit Court ruled that an employer can terminate an employee who falsely alleges discrimination. In the case, Villa v. CavaMezze Grill, Patricia Villa told Cava's upper management that a store manager had sexually harassed two employees. She said she'd been told this by one of those employees while another Cava employee was present.

Cava's management immediately investigated Villa's report by interviewing the two employees reported to have been harassed, as well the employee Villa had claimed had heard one of the reports. But both of the alleged victims denied being harassed and denied reporting harassment to Villa.

Cava management terminated Villa for making a false report. After Cava terminated Villa, one of the women she'd identified as a victim allegedly confessed to Villa that she had told Villa she had been harassed, but had not actually been harassed. Villa then asserted Cava shouldn't have terminated her for making a good-faith complaint of harassment.

The court ruled that an employer who fires an employee based on a good-faith belief she engaged in misconduct isn't liable for retaliation even if it turns out she didn't engage in the misconduct. According to the ruling, Cava terminated Villa because they believed she made a false report, not in retaliation for reporting the alleged harassment.

Before terminating Betsy, former attorney turned human resources and workplace consultant Rick Birdsall suggests you find out exactly what your employees told Betsy. "If your employees deny talking with Betsy about sexual harassment, you have stronger evidence her report may have been false."

I suggest you go beyond this, and find out from your employees and Betsy exactly what she and they discuss during these closed-door meetings. Venting rarely produces positive results and Betsy may be training employees to sound off about issues, instead of coaching them on how to productively and directly work things out with those with whom they have grievances. Further, she appears to be supplanting their actual supervisors, thus setting up potential triangulation.

Going forward, you additionally may need to strengthen your employee handbook, making it clear that your company encourages employees to come forward if they feel harassed, that it will not retaliate against any employee who makes a good-faith claim of harassment, and that false and malicious allegations may be the subject of appropriate disciplinary action.