Stupid "discrimination" complaints: How should an employer handle?

A reader, who has asked to remain anonymous, suggested that I write about employees who make "stupid" complaints about discrimination, harassment, or other allegedly unlawful treatment.

The following is a fictionalized email, but it accurately presents the spirit of her concern.

Dear Robin,

I am a Human Resources director for a government employer. You won't believe this, but I received the following complaint from one of our employees this week:

"My boss walks by my desk every day, smiles, and says 'Good morning.' The way he says it has me convinced that he is trying to hit on me. He always looks me right in the eye, and when he smiles I can see his teeth. I would like to make a formal complaint of sexual harassment. I am very happily married and do not need this hostile environment!"

Help! I understand that he could be harassing her if he was looking at her body or using a "bedroom" tone of voice, but she hasn't accused him of anything like that. What do I do? More specifically,

1) What do I say to her?

2) The complaint was made orally, but should I reply in writing so that we have a record?

3) Is this legally protected activity, or can I write her up for wasting my time with this ridiculous complaint?

Thanks - love your blog!"

Readers, you ever heard this?

"My boss is retaliating against me -- he makes me do my job every day!"

"My boss is harassing me -- she makes me do my job every day!"

"The medical department is retaliating against me -- they won't give me FMLA leave until I turn in a medical certification!"

"The company is retaliating against me -- they denied my claim for workers' comp!"

Probably so. Employees (and, let's face it, all of us) sometimes think we understand the law when we really don't. We often think that we have legal rights that we don't have. Or we may not think that we have legal rights that we do have. Some of us are overly sensitive. Others may not be sensitive enough.

And every once in a blue moon, the employee making a crazy complaint like this may be right about the unlawful conduct but is just not very good at expressing herself.

Hey, you never know!

Given all of this, my recommendation would be to give these silly-sounding accusations more attention than they probably deserve, to be safe.

First, when an employee starts throwing around words like "discrimination" or "harassment" or "retaliation" or "hostile work environment," treat that as a warning sign. Even if the employee is wrong, she believes that she is the victim of unlawful conduct. She may even have talked to a lawyer already. To that extent, you should be grateful that she was willing to come to you about this before filing a charge or lawsuit.

Even though you will want to protect the accused employee, give the accuser the benefit of the doubt long enough to sit down with her and probe more deeply into her complaint. Is her complaint only that the supervisor smiled and said "Good morning" every day? Was there anything else about the way he said it that she considered offensive? Is there an ethnic, religious, or cultural issue at play? No need to beat it to death, but just be satisfied that you have heard all of her allegations and understand her perspective.

Second, ask her what she wants you to do about it. If she doesn't want the supervisor to say "Good morning" to her any more, does she want him to stop greeting her entirely? (If she says yes, then document it, because your next complaint, I guarantee, will be, "My supervisor never speaks to me any more! Why doesn't he like me?") Does she have a thing about teeth, which perhaps could be solved if he smiled at her with his mouth closed, or said "good morning" to her by phone or email? (Yes, I know this sounds ridiculous, but it takes all kinds to make a workplace.)

Now that she has it off her chest, does she feel like she doesn't need for you to do anything about it?

Third, assuming there really is no actual discrimination, harassment, or retaliation, explain in a gentle way that the supervisor is just trying to be friendly, or (if "forcing" the employee to "work") just doing her job, or (if requiring an FMLA medical certification) just following the normal process for handling FMLA requests, etc. Don't tell the employee that she is an idiot or that she's wasting your time. (Not that you would!) But, on the other hand, don't be afraid to explain the other side to her. Your willingness to "engage" shows respect for her viewpoint.

Fourth, thank her for letting you know, and invite her to come back if she perceives any other problems. Use your judgment as to whether you need to even mention the complaint to the accused party. (If you are convinced that nothing objectively offensive or illegal occurred, his ignorance can be bliss. For both of them.)

Fifth, make sure there haven't been complaints about the accused from other employees. If it turns out that there have been, act accordingly.

Sixth, follow up with a detailed note to file laying out the complaint, what she wanted you to do, any special circumstances, what you did or didn't do in response, and why.

Seventh, send the accuser an abbreviated email, thanking her for the talk, summarizing the resolution, and inviting her to let you know if there are any other issues.

Now, for my reader's big question -- is a complaint like this protected activity?

Probably so, although the answer will depend on which laws are involved. The employee subjectively believes that she has been a victim of sexual harassment. She is, in all likelihood, completely wrong. But I would consider this a good-faith-but-mistaken complaint of harassment, which would be legally protected. If the complaints continue and become disruptive, you might have to take action based on the disruption, but I wouldn't do it based only on the fact that she made a good-faith complaint that you found to be meritless.

Great topic, and my thanks to the reader who suggested it!

I hope you all have a good Memorial Day weekend.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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