Strengthening Your Organization Against False Allegations of Discrimination, Harassment or Bias
As we are all painfully aware, legitimate and painful acts of discrimination, sexual harassment and bias have been a serious reality in a great many organizations in the past. Unfortunately, they continue to occur, although most would agree with less frequency. Legitimate acts and allegations must always be taken seriously, however such are not the focus of this article.
The Reality of False and Exaggerated Allegations
Beyond legitimate and credible allegations, it is an absolute reality that the issue of false and exaggerated allegations of various types of harassment, discrimination and bias continue to be a problem in all professions and throughout society. To say that it is a “cottage industry” is not an exaggeration; as there is no shortage of attorneys and psychologists who specialize in litigation, including for behaviors which are minor at best and in some instances fabricated or greatly exaggerated, and which have the potential to yield a financial award. A related unfortunate reality is the fact that the significant number of false and exaggerated allegations is such that legitimate problematic situations are often met with skeptic, which is terribly unfair to actual victims.
If I sound a bit biased with respect to this issue, it is based on years of dealing with – in my opinion -- just as many false and exaggerated cases as with those that are truly meritorious. Time and again, I have witnessed the organizational and workplace trauma that often occurs when an employee, typically a somewhat troublesome person and often facing internal discipline, files a claim or lawsuit against the organization; usually boilerplate and with multiple defendants and “John Does,” alleging multiple troublesome situations having occurred over a period of time. While it should not be the case, a lawsuit alleging discrimination often distracts an agency from the energy and attention that needs to be applied to solving crimes, especially in a supercharged political environment with a weak leader; as internal drama goes up, organizational effectiveness goes down.
It is essential that leaders not lose sight of the sometimes truly awful impact that allegations of discrimination, harassment or bias can have on an accused employee. When a person behaves inappropriately, that employee must accept the predictable consequences, consistent with the magnitude of the behavior. That said, it is also incumbent on a leader to ensure that matters are kept in reasonable perspective and not permit a minor action, such as an isolated comment, to put the involved employee and the workplace into a traumatic tailspin. The consequences of actions should fit the behavior; a minor issue should most often be dealt with by stern counselling and training and not measures that will jeopardize a person’s career or good standing in the organization. Wise and tenured leaders who have themselves developed scar tissue related to false allegations typically demonstrate the greatest balance in the resolution of these types of matters and prevent the over-reactions that lesser leaders sometimes permit to occur.
Preemptively Creating Evidence for Discovery
A historically serious problem that many agencies have faced is the scarce or total absence of evidence to refute false or exaggerated allegations. In all courts of law, whether civil or criminal, the outcome is always determined by the existence and weight of credible evidence; the side with the greatest amount of credibility evidence is likely to prevail with a judge or jury – it is really that simple! Strong leaders need to understand this reality and take seriously the need to proactively create and document information that will aid the organization in helping courts of law to adequately and accurately evaluate lawsuits against the department and accused employees.
Although most organizations have rules and protocols that mandate recordation of personal actions such as counselling sessions, it is a reality that a great many supervisors chose to handle counseling and guidance in a verbal manner, which is a less unpleasant but can deprive the organization of documentation to demonstrate that necessary personal actions were taken and issues were addressed. As we all are painfully aware, “if something is not in writing, it did not occur.”
Conversely, employees who pursue legal action will often have a trove of documentation to support the allegations they are making, to include notes, memos, reports, evaluations and anything and everything that their attorney will use to portray the matter consistent with the case strategy.
The wise executive will understand this reality and critical need for evidence and take credible preemptive measures to strengthen the organization in defense of false or exaggerated allegations, by creating documentation that will demonstrate the good and honorable intentions of the organization and challenge the credibility of questionable allegations.
First and always, insist that supervisors and managers have the courage, inclination and wisdom to do their job, which means taking seriously the need to document personnel actions. If there is a problem such as inappropriate behavior or comments, address it properly and document it completely. In the area of personnel evaluations, ensure they are accurate and not artificially inflated. These are not just mandated pieces of paper, but documents that may be key and pivotal in adequately reflecting workplace issues and personnel actions. Just being right and reasonable in how a supervisor deals with employees is not enough; those actions need to be documented.
I have witnessed time and again in the agencies where I have worked, the anguish of supervisors under cross-examination, attempting to describe the weak or troubled behavior of a subordinate and explain why that behavior was not reflected in reports and evaluations. The supervisors were “trying to be the good guy” in being charitable in what they wrote, and now their failure to document weak performance is coming back to haunt them, as the attorney is asserting (correctly!) that, if the performance was substandard, it should have been reflected in supervisory reports. Watching a problem employee who made false allegations get a money reward carries a particular sting when it could and should have been avoided had supervisors just done their job!
A Preventable Nightmare Scenario – Sound Familiar?
The commotion is front of your facility turns out to be an impromptu press conference, with the media in attendance, where a marginal or problematic employee is standing next to an attorney whose is announcing a civil lawsuit against the agency and its leadership. It is painful as you listen to a weak employee described as a superstar whose career is hindered solely by actions which are discriminatory, or bias, or both; to hear your supervisors and managers described as vindictive and incompetent; and your agency described essentially as an evil empire and hotbed of unfairness and discrimination. Several months later, that weak employee once again stands alongside the attorney, with smiles on their faces and checks in their hands, claiming to have succeeded in having improved the terrible workplace! Strong leadership may well prevent this type of nightmare scenario.
Signed Acknowledgement of Policy & Expectations of Every Employee
Every organization must have a written policy which outlines a zero-tolerance policy for any types of discrimination, harassment or bias. This is a critical document which must be conspicuously posted in the workplace, widely disseminated, and understood clearly by all employees. It is essential that the policy be seen and taken seriously, that the philosophy be incorporated throughout the organization, and that it not be seen as just another mandated directive to be placed on the bulletin board.
The wise leader will recognize that the document will absolutely be among the evidence provided in the defense of allegations and will exercise special effort to clearly delineate the specific expectations of all employees, to include those who believe that they are the victims of such behavior. This document, which will be among the items of evidence reviewed by a judge or jury, should clearly describe the severe adverse individual and organizational consequences of any types of discrimination, harassment or bias are not immediately addressed. The document should make clear the expectation of immediate resolution or reporting and provide the identities of individuals and entities both within and outside of the organization where reporting the perceived inappropriate behavior(s) can be made. The document must include a commitment that all allegations will be taken seriously, investigated completely, and will result in appropriate disposition, which in the case of sustained allegations can range from training to termination.
Potential Impact on Litigation
Let there be no doubt, the inclusion of the clause in the zero-tolerance policy which creates an organizational expectation for immediate resolution or reporting does place a burden on the reporting employee: the burden of reasonable credibility. Not only must the employee demonstrate in court why there was a delay in reporting, but must also acknowledge his or her understanding -- as described in the signed acknowledgement of the reporting expectation – of the severe adverse individual and organizational consequences of any types of discrimination, harassment or bias that is not immediately dealt with. Those who might argue that the written reporting expectation makes it more difficult to establish valid acts of discrimination are mistaken; it merely helps to level the playing field for the admissibly of credible evidence for a judge or jury to consider and makes clear that multiple avenues of reporting were available.
The strategy employed by problematic employees and their attorneys is to establish a pattern of alleged problematic situations and instances which occurred over a period of time, and which were ignored or not addressed adequately by management; this overall scenario is where the large awards occurred. Single or even several problematic situations, unless truly of a horrific nature, that were quickly addressed, and remedial actions taken to prevent reoccurrences, seldom result in significant damage awards. Thus, the organizational need for strong and consistent supervisorial actions and quick resolution of potentially problematic issues.
I personally have some limited experience with this concept. In one of the several agencies where I served, I created a policy with mandated reporting expectations, and for my entire tenure as the agency head received no allegations of harassment, discrimination or bias that were not resolved internally. I later learned that two of my weaker employees who had failed to attain positions that they had sought, explored the filing of discriminatory actions but failed to do so when the attorneys they consulted declined to take the cases on a contingent basis. An expansive discussion of this material can be found at KeithBushey.com (Articles): Focus on Ethics – Zero Tolerance Must Also Apply to False Allegations of Discrimination and Harassment.
Option to Immediately Confront & Resolve
Common sense must apply in situations of a minor nature where verbal resolution may be the most appropriate and reasonable course of action. As a prime example, the best resolution for an isolated foolish remark may best be a verbal rebuke that the statement was offensive, and a request that it not occur again. If the offended employee chooses to pursue this option and believes the offensive behavior will not reoccur, this matter should be considered to be resolved. In the event of a reoccurrence, the immediate formal report should be made.
Summary
If the past is any indication of the future, just about every organization is going to continue to be sued by employees who will allege discrimination, harassment or bias. Notwithstanding legitimate situations, for questionable allegations the likelihood of litigation and certainly the degree of successful damages can most likely be mitigated by the requirement that each employee is expected to immediately confront and resolve or immediately report any perceived incident of discrimination, harassment or bias.
The need to convince a judge or jury that a delay in reporting was credible, even though there was a written commitment to immediately report, as well as an acknowledgement of the “severe adverse individual and organizational consequences of a failure to immediately report” present a high evidentiary hurdle. If it is a legitimate situation, the employee can and should do what is necessary to address troublesome behaviors. If the case is bogus or greatly exaggerated, perhaps the hungry attorney will not take the case on a contingency basis and the employee will not be inclined to provide a retainer!
Think the creation of information for discovery!!!!
Keith Bushey retired from the Los Angeles Police Department as a commander, from the San Bernardino County Sheriff’s Department as a deputy chief, and from the United States Marine Corps Reserve as a colonel. Other law enforcement experience includes having served as a Los Angeles County deputy sheriff, a State of California deputy game warden, and as the Marshal of San Bernardino County. He is an instructor emeritus for the FBI Law Enforcement Executive Development Association and has lectured and written extensively in the areas of leadership, management and ethics. His entire eight booklet Leadership Series is in the public domain and may be downloaded without cost from KeithBushey.com.
First published in American Police Beat:
February 2024