Despite possible hoaxes, conducting a complete and thorough investigation is critical

March 2, 2019

The alleged hate crime hoax involving “Empire” actor Jussie Smollett has left employers questioning if this could happen in the workplace.

Smollett, who is black and gay, claimed to be a victim of a hate crime committed by men who threw liquid in his face, yelled racist, anti-gay slurs and looped a noose around his neck. But after a three-week investigation, Chicago police charged Smollett with staging the attack with help from two brothers he knew and allegedly paid for their services and for filing a false police report.

Employers who may be faced with similar suspicions of hoax complaints need to address their concerns carefully, as they do not want to appear retaliatory.

Thankfully, deceptive employee complaints like this are rare, but not unthinkable.

Roanoke-based attorneys Thomas Winn and Victor Cardwell, both with the Woods Rogers law firm, represented an employer who was sued for race discrimination and harassment, some of which were determined to be fraudulent.

In the course of that case, the employer received complaints of racial epithets and physical abuse against black employees. The employer terminated those accused of the misconduct. It also overhauled its management and human resources staff, implemented new policies and trained staff on diversity.

Thereafter, a black employee reported that he received anonymous hate notes and nooses at his desk. He said he was called a racial epithet by a company official.

The company launched an investigation and conducted “wall-to-wall interviews of all employees,” according to the case. It also enlisted the assistance of law enforcement on the grounds that such conduct constituted a hate crime. The initial complaining employee refused to cooperate with authorities.

The employee entered into a settlement agreement with the company and, on that same day, another employee (“Mr. B”) reported that he received a hate note. The company again contacted law enforcement and interviewed witnesses. Shortly thereafter, another black employee reported that she received a hate note in her locker.

After an extensive investigation, including an FBI handwriting analyst, Mr. B was arrested for authoring the notes. He pled guilty to attempting to gain money by false pretense. Mr. B implicated another employee he said was the “mastermind behind the hate notes scheme.”

Winn and Cardwell worked with the employer throughout these investigations. They said they were suspicious from the beginning when the hate notes appeared, saying it didn’t add up.

Their advice to employers if dealing with a similar situation is to take every complaint seriously. “You cannot allow your initial instincts to dictate how you conduct yourself or the investigation,” Cardwell advises. “In this era of #MeToo and the situation referenced above, there are going to be some false complaints but no employer should ever start an investigation with that mind-set.”

Winn said you must follow the evidence where it might lead you. He said conducting a complete and thorough investigation is critical.

“It is not common to engage law enforcement or private investigators, but sometimes that is necessary to demonstrate how seriously you take the matter and to try to bring as many resources to bear on the problem as possible,” Cardwell said.

Winn said that if it is a true complaint, take prompt action to stop the conduct. “In the rare event you find that a fraudulent complaint is made, do not become jaded to all other complaints. You address those people swiftly and appropriately and move on,” Winn said. “The world is full of great people, there are rare ones who want to game the system but they do not dictate your good HR practices.”