Employment & Labor Insider

I have, unfortunately, seen a number of cases during my career that involved false allegations of sexual harassment made against an employee, usually a member of management. And usually male.

We didn’t always find out that the allegations were false until later in the case, when we obtained (for example) voice mail messages of the accuser telling the accused that she couldn’t wait to meet up with him again at their usual motel, or X-rated sexts from the accuser to the accused, or even flat-out admissions by the accuser -- on the record and under oath -- that the relationship was consensual.

"Well, yeah, I sexted him, but only because he sexted me, and if I hadn't reciprocated, his feelings would have been hurt." 

In my experience, the accused has never sued the accuser for defamation.

But an accused man in Ohio did sue, and he’s going to get a jury trial against his accuser. The court’s decision has some good information about accused harassers, and defamation claims against (a) the employer and (b) the accuser.

The plaintiff (we’ll call him Derek) was his company’s Chief Legal Officer. He got fired for alleged sexual harassment, among other reasons, and sued the employer and the individual who accused him (we’ll call her Shaunna).

The court dismissed all of Derek’s claims against the employer, but his claim against Shaunna will go to trial.

In the words of ChatGPT, “let’s dive in.”

Employer wins

According to the court’s decision, there was evidence of more than a professional relationship between Derek and Shaunna. If you know what I mean, and I think you do.

(That has been true of just about all the sexual harassment lawsuits I’ve ever defended.)

Anyway, Shaunna reported that Derek was sexually harassing her, and the company brought in an outside lawyer to conduct an investigation. The lawyer found that some inappropriate behavior did occur. The President then sent an email to the company’s top officer in Japan, said that the allegations of harassment were “partially substantiated” (with more detail than I just gave you), and recommended that Derek’s employment be terminated for a number of reasons, including the alleged harassment of Shaunna.

Which it was.

Derek’s first defamation claim was against the company and the President. Derek alleged that the President talked with other people about the (supposedly false) allegations. But the communications were based on the attorney’s investigation, and they were all made to people at the company who arguably had a legitimate need to know. Therefore, there was no indication that the President had done wrong by communicating with others about the allegations.

So the court threw out Derek’s defamation claims against the company and the President, as well as all of Derek’s other claims against the company and the President.

Lesson for employers: If your employee is credibly accused of misconduct, you are generally protected if you take action on that basis, as long you have a good-faith honest belief that the employee was engaging in the misconduct. This is so even if the allegations turn out to have been incorrect or false. I’ve discussed the “good-faith mistaken belief” rule here (scroll down to No. 5).

And getting back to the defamation claim, you are also entitled to discuss the allegations and the investigation with members of management who have a legitimate need to know. That’s not defamation.

Accuser loses (for now)

Even though Derek’s claims against his employer and the company President were dismissed, Derek will get a jury trial on his defamation claim against accuser Shaunna.

Shaunna contended that she had legal immunity from the defamation claim.

But, according to the court, Shaunna wasn’t legally immune. And she never denied that she had falsely accused Derek of sexual harassment. Or even that she honestly (if mistakenly) perceived Derek’s behavior as harassing.

Whose pants are on fire?

That’s weird. The court thought so, too. But in Shaunna's defense, her lawyers may have concentrated on immunity as a matter of legal strategy. Even if she'd said she was telling the truth, presumably Derek would get a trial anyway because there would be a "genuine issue of material fact" that would have to be resolved by the jury.

So Derek gets a jury trial on his defamation claim, and Shaunna could still win at trial.

What the heck is really going on here? 

In almost all of the “false accusation” cases that I’ve handled, the accused was behaving in an “unprofessional” manner with the accuser, and there was proof. But the proof existed because the parties were in a consensual relationship.

Usually, the man was married. Often, they were both married – “but not to each other.”

Then they broke up. The breakup usually occurs in one of two ways:

The man decides that he wants to try to save his marriage, so he ends the relationship with the co-worker, who is hurt and angry about it.

Or the co-worker's husband finds out what is going on and threatens to leave and take the kids. The only way the co-worker can save herself is to claim that her work "partner" pressured or forced her into the relationship. In legal terms, she is telling her husband that her partner’s sexual advances were “unwelcome.” The husband is furious and says they need to sue everybody in sight – or, at least, the company and the partner. The co-worker is scared and feels she has to go along with it. (Gee, I feel like I've written about this before.)

"I'm telling the truth, I swear! Ask Geppetto!"

In either scenario, the accused does not usually take legal action against his accuser. I suspect this is because his only chance of winning the sexual harassment case and (maybe) saving his job is to confess to the consensual relationship. And I suspect that most people who are forced to confess to an affair with a co-worker have enough troubles, both at work and at home. Why stir things up even more by filing a defamation lawsuit against the accuser?

But Derek, apparently, saw things differently. He had already been fired, so he had nothing to lose as far as his job was concerned. I did not see any indication that Derek was married, so there may have been no concern there, either.

Based on the court’s decision, I do suspect that something was going on between Derek and Shaunna. But if the "harassing" relationship was really consensual, then the accusation may very well be defamatory.

Disclaimer

In this post, I've been referring to accusers as female and accused persons as male because that is what I normally see. But the sexual harassment laws apply to everybody. This post is about only one subset of sexual harassment claims.

TIME FLIES!

Tomorrow, October 25, will be the 15^th anniversary of this blog. To our readers, our attorney contributors, and to Constangy (especially Neil Wasser, who had the idea and asked me to do it), THANK YOU for putting up with me for all of these years. I hope you'll be reading for a long time to come!