Conducting Workplace Investigations: Honest Belief Rule and Avoiding Pretextual Discrimination Claims

Description

Employers must consider that unlawful discrimination and retaliation claims can arise in the treatment of individuals. In either case, employers should undertake reasonable investigations and exercise due diligence before implementing a decision that impacts an individual's employment.

When investigating workplace misconduct, employers should know that if an employee has a "reasonable belief" that the conduct they are objecting to is unlawful or discriminatory, an employer can still be found liable for retaliation if it takes action against the employee--even if the challenged conduct is ultimately found non-discriminatory. In other words, the employee could be wrong about the discrimination complaint, but the employer can still be liable for retaliating against the employee for complaining. On the other hand, an employer might be found not to have violated an employment law if it "honestly believes" an employee has engaged in inappropriate activity.

Recent cases have concluded that some employers have engaged in pretextual discrimination and misapplied what is commonly referred to as the "honest belief rule." There have been conflicting decisions as the courts have to balance the competing policy considerations of employees being deterred from filing discrimination actions versus employers being held powerless to discipline employees for filing false charges, lying to investigators, and possibly defaming others with false claims.

Employers should also remember to retain consistent records of all personnel decisions and ensure that decision-makers remain neutral.

Listen as our experienced panel discusses workplace investigations, the use of the honest belief rule, and how recent decisions may affect employers. The panel will address the best practices for mitigating potential discrimination claims.