When employers investigate discrimination claims, they don’t have to act like courts of criminal law, deciding whether an employee is telling the truth “beyond a reasonable doubt.”
Employers must, of course, conduct an internal investigation—one that’s fair and carried out in good faith. By definition, that means HR or whoever investigates must decide who is telling the truth and which witnesses or accounts are most believable.
The fact is, employers get to decide who they think is most credible—and for better or worse, they’re allowed to be wrong.
So don’t feel paralyzed if a discrimination investigation boils down to one employee’s word against another’s. Use your best judgment to decide who is telling the truth and go with that judgment. Courts won’t second-guess the decision unless the complaining employee can prove you sided with someone you knew was lying and used it as an excuse to discriminate.
Recent case: Johnny Johnson, who is over age 60, worked as a pilot. He flew over oil and gas pipelines with a spotter, looking for trouble. He then reported back to the company.
One of his spotters complained to that Johnson was anti-Hispanic and had once told him “the government should let the civil air patrol guard the border and give them all the rifles so they could shoot the Mexicans.” The company fired Johnson based partly on the spotter’s complaint.
Johnson sued, alleging he hadn’t made such a statement.
The court tossed out his case. It reasoned that, as long as the employer in good faith believed the spotter, it was irrelevant whether he had in fact been telling the truth about Johnson’s alleged comment. The employer doesn’t have to be right, just honest. (Johnson v. Barr Air Patrol, No. 3:07-CV-1444, ND TX, 2009)
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