Q. May an employer include language in its sexual harassment policy imposing discipline on employees who bring false claims of harassment?
A. Including such a statement does not violate state or federal laws. However, the purpose of implementing a sexual harassment policy is generally to encourage employees to bring complaints of inappropriate behavior to the company’s attention. Some contend that promising to punish workers who bring “false” claims will discourage them from making legitimate complaints. That could cause sexual harassment liability.
For example, in its recent sexual harassment rulings, the U.S. Supreme Court held that an employer could avoid strict liability for harassment by a supervisor when no adverse employment action was taken if:
- The employer exercised reasonable care to prevent and correct the harassment, and
- The employee unreasonably failed to take advantage of any preventive or corrective opportunities the employer provided.
If an employer’s sexual harassment policy includes sanctions for employees who bring false claims, a worker may be able to dodge the affirmative defense by contending that he or she did not complain about the inappropriate conduct due to a reasonable fear of retaliation.