False Sexual Harassment Claim Merits Termination

If an employee makes a false sexual harassment complaint as a diversionary tactic to avoid discipline for misconduct, can the employer terminate the employee for making the complaint, or is the employee protected against “retaliation” under state or federal anti-discrimination laws? A California appellate court considered that question in a case titled Joaquin v. City of Los Angeles.

Richard Joaquin was a Los Angeles Police Department officer. He complained of sexual harassment by Sergeant James Sands. Alleged incidents of sexual harassment included:

• 10/03. Sands asked him to “go out some time.” Joaquin said he wasn’t gay. Sands told him not to tell anyone he was gay.
• 3/04. Sands saw Joaquin at the gym, and said “You have nice arms.”
• 7/04. Sands called Joaquin several times, making small talk.
• 7/04. Watching Olympic men’s diving competition, Sands says “They look good.”
• Late ’04. Joaquin sees Sands watching him at a traffic stop. Another time, Sands sees Joaquin on a stop and says “You look nice standing there.”
• 12/04. Sands sees Joaquin after an intramural basketball game, and asks whether he was going to take a shower.

Some time later, at the end of one shift, Sands supposedly had a problem with Joaquin leaving work early, and it seemed that discipline could ensue. Joaquin thought that this was retaliation for rebuffing prior sexual advances, and so he made a complaint to a supervisor. The matter was turned over to Internal Affairs.

Internal Affairs investigated the sexual harassment allegations against Sands and determined that they were unfounded.

Sands made an official misconduct complaint against Joaquin, alleging that he made a false complaint in order to relieve him from a disciplinary action relating to leaving shift early. After further internal proceedings, including a review board hearing, the police department terminated Joaquin for making a false accusation.

The review board wrote: “It is clear that [Joaquin] believed he was going to be the subject of disciplinary action that could have negatively impacted his future promotion to sergeant, and made the above referenced poor decision to seek disciplinary action against Sergeant Sands.”

The Lawsuit

Joaquin filed a lawsuit against the police department, alleging termination in retaliation for filing a sexual harassment complaint, in violation of the Fair Employment and Housing Act. (FEHA)

FEHA declares it an “unlawful employment practice” for any employer “because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation of any person, . . . to discharge the person from employment . . . , or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” The statute also prohibits employers from retaliating against employees for engaging in protected activity--i.e., for discharging, expelling, or otherwise discriminating against any person because the person has opposed any practices forbidden under the law.

In the course of the lawsuit, Joaquin demonstrated that he reported sexual harassment, was performing well as a police officer, and suffered termination. The police department, however provided a legitimate business reason for the termination decision; that is, he fabricated a sexual harassment complaint against Sands.

The question, then, was one of intent. Did the police department intend to terminate Officer Joaquin in retaliation for his harassment complaint, or did it terminate him because he made a false complaint?

As the court wrote: “the relevant legal question is whether an employee may be disciplined if his or her employer concludes that the employee has fabricated a claim of sexual harassment, or whether such a complaint is insulated from discipline even where, as here, the employer determines that it was fabricated.”

This article is intended as a brief overview of the law and is not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney.