Various types of discrimination and sexual harassment continue to be major issues for today’s law enforcement leaders. While our profession has made significant strides in reducing these types of troubling behaviors, occasional problems still arise, and the resulting consequences can be individually and organizationally catastrophic.
In addition, a very real related problem that gets less attention than it should is that of false and exaggerated allegations of various types of harassment and discrimination. In a profession that appropriately puts such a high premium on honesty and ethical behavior, it almost seems as if there are exceptions when it comes to false and or exaggerated claims of discrimination, harassment, or medical disabilities. The volatile and emotional nature of these types of allegations, coupled with frequent litigation where the agency and various personnel – typically including the head of the agency – are named as defendants, often result in a defensive environment.
As every law enforcement executive is aware, false and exaggerated claims typically come from problem employees who attempt, often successfully, to use ethnicity, gender, or sexual orientation as an excuse for their failure to promote, obtain a desired assignment, as a counter-‐attack when facing discipline or other sanctions for their own troubling behavior, or for financial gain. Beyond the very real existence of valid complaints, a problem employee with a false allegation, can often put an agency in a tail-‐spin by invoking the magic words of “discrimination” or “harassment” (or both!), resulting in organizational over-‐reactions such as a degraded environment, unfair reassignments, loss of congeniality among some employees, inappropriate obsession over legal issues, and a diversion of mental and emotional energy away from critical public safety issues.
As the former commanding officer of the Los Angeles Police Department’s (LAPD) Personnel Group, a position that also included being the Department’s Equal Employment Opportunity Officer (EEO) and over the entity which investigated complaints of discrimination and harassment, the Equal Opportunity Development Division, I must sadly say that it was my strong recognition, and that of virtually everyone else in the chain of command, that a significant percentage of the allegations from police personnel were false and/or exaggerated. This troubling reality became a path of choice for some of our most challenging employees, as well as a cottage industry for a number of plaintiff’s attorneys.
In subsequent positions, as the Marshal of San Bernardino County and as a deputy chief with the San Bernardino County Sheriff’s Department, suspicious claims occasionally arose, but nothing that came even remotely close to the number of questionable claims that I observed in Los Angeles. Contributing to the high number of claims in Los Angeles was a robust cadre of attorneys who specialized in personnel law and the reality of court jury pools that were often particularly favorable towards plaintiffs. Both are very real factors that played a role in fueling various types of claims, unfortunately including those that were false and/or exaggerated along with those that were truly legitimate.
In overseeing a seemingly never ending parade of unmerited awards based on false and/or exaggerated claims, and the heavy emotional and organizational toll these claims had on individuals and the department, my frustration gave rise to possible strategies that could potentially reduce the percentage of unmerited findings and awards.
As I retired from the LAPD and transitioned into the San Bernardino law enforcement community, I also developed what became a successful agency defense strategy for combating false and exaggerated claims. The strategy involves a court admissible document, signed by each employee, and made part of each employee’s personnel record, that mandates the immediate reporting or resolution of any troubling behavior, and each employee’s signed acknowledgement of the adverse organizational consequence of behavior that is not immediately addressed. The document not only reiterates all of the typical verbiage associated with zero tolerance, but is also intended to call into question the veracity of an employee who claims multiple or aggravated troublesome behavior when they had signed a commitment to immediately report or resolve. The following is an exemplar document intended to play a significant role in an agency’s defense against false claims.
ANYTOWN POLICE DEPARTMENT
RESPONSIBILITY TO IMMEDIATELY EXPRESS CONCERN AND/OR REPORT HARASSMENT OR DISCRIMINATION
The Anytown Police Department has a zero tolerance policy for any type of harassment and/or discrimination, be it related to ethnicity, gender, national origin, religion, disability age, or sexual orientation. Such conduct is not only contrary to Department policy, but is also against the law and is just plain wrong. Such behavior can not only be personally devastating to the individual(s) involved, but can also be devastating to the workplace in terms of conflict, decreased productivity, unpleasant environment, and the degradation of interpersonal relationships and overall morale.
The intent of this directive is to provide each employee with clear, practical, and accurate guidance in a manner that involves both common sense and an understanding of the reality of today’s workplace. This directive is not intended to replace existing Department and/or
Municipal policies, procedures, and rules, but rather to supplement those directives with amplification and emphasis.
The key to dealing with any type of discrimination or harassment is either the immediate expression of concern and resolution, or reporting. Failure to take immediate action and/or to report inappropriate behavior typically results in aggravation of the situation and is not acceptable. It is the expectation of the Anytown Police Department that any employee who is either subjected to behavior which could be construed to be harassment and/or discrimination, or which is unwelcome, including inappropriate comments and/or unwanted touching, or who becomes aware of such behavior, shall immediately take one or both of the following actions:
- EXPRESS CONCERN: Express concern to the individual who demonstrated activity which could be construed as either harassment or discrimination, indicate that the action is or can be construed as offensive and inappropriate, and ask that the behavior be immediately stopped and not repeated, if all the following conditions apply:
- The behavior is construed as not intended to harass and/or discriminate (i.e. potentially inappropriate joke, expression, etc).
- The individual(s) subjected to the behavior believes that expressed concern will resolve the issue without the need for further action.
- The behavior, if intentional, would be considered to be no more than minor misconduct (such as a single remark which is not blatantly obscene and/or highly offensive).
- The employee who experienced the behavior and expressed concern to the offending employee is not aware that any other employee has ever expressed concern to the offending employee for related behaviors.
- The employee who experienced the behavior feels comfortable in expressing concern to the employee who engaged in the inappropriate behavior.
Note #1: Under the expressed concern option, the issue may be considered closed and resolved, and not require supervisorial notification, if the offending employee believes that the employee who engaged in the minor and potentially inappropriate behavior learned from the encounter and will not repeat the behavior. If a positive
and constructive response is not demonstrated by the employee who engaged in the potentially offensive behavior, or if there is any question whatsoever as to whether or not all of the required conditions apply, a supervisory notification is required.
Note #2: It is emphasized that expressing concern is absolutely not to be considered as a responsibility, but rather an option that an employee can employ as an alternative to official reporting to supervisorial personnel if all of the aforementioned criteria apply. It is recognized that
some employees, such as sworn law enforcement officers, possess exceptional training and skills in force and assertiveness, but that other employees may not feel comfortable in expressing concern under these circumstances. There will be no adverse consequences whatsoever when an employee opts to report the matter to a supervisor, or any other reporting option, as
opposed to expressing concern to the individual involved.
- REPORT: Make a notification, as soon as is practicable.
While it is preferable that the supervisor be in the chain of command of the employee who is the recipient of the inappropriate behavior, such is not required. Recognizing that there may be instances when an employee would feel more comfortable in discussing sensitive issues with a person who may be of the same gender, ethnicity or orientation, or with another supervisor with whom they have established a rapport, an employee – without any ill-‐will or prejudiced attaching – may make the notification to any safety or general Department supervisor. Further, if for any reason, an employee feels uncomfortable and/or is reluctant to make a notification to a member of the Police Department, such notification may be made to any supervisory-‐level employee within the City’s Human Resources Department. The most important factor is that a prompt notification is made, not to whom it is directed.
An employee who reports potential harassment and/or discrimination is assured the matter will be handled with sensitivity, and the person reporting will not experience retaliation from any source, regardless of the ultimate disposition of the matter. The maintenance of an environment where employees feel comfortable in bringing forward matters of this nature is critical to a wholesome workplace, and will be taken seriously by all supervisory and management personnel.
Any act, or perceived act, involving potential discrimination and/or harassment of any form will be taken seriously and dealt with promptly.
Possible actions may include the entire gamut of possibilities from training and/or discipline to termination and/or criminal prosecution, depending upon the individual circumstances of each case. Each situation is different and is influenced by a number of factors, including but not limited to: severity, prior incidents, impact on other employees and the workplace, prior disciplinary history, potential for legal liability, and the best interests of all concerned employees, as well as the best interests of the Department.
Once again, the key is immediate reporting. Harassment and discrimination are often similar to other types of misconduct in that initial offenses are often of a minor nature that can be handled with training and counseling and/or minor disciplinary action. Immediate reporting enables prompt action in a positive manner that will be the least disruptive to the organization and the individuals involved. Delayed reporting most often results in continuation and increased severity of the behavior, disruption of the workplace, increased adverse personal impact, and very legitimate questions as to the motivation and reasons for a lack of prompt reporting.
The prevention of any type of harassment and/or discrimination, and the maintenance of a workplace free of hostility and conflict, is the responsibility of every employee. We must be diligent in dealing with one another in a manner that fosters goodwill, respect, and an appreciation for our individual differences. While self-‐discipline and the courage/inclination to challenge one another in the face of minor potential offensive acts is usually sufficient to maintain a wholesome workplace, there are also instances involving such behavior when immediate reporting is the only option. I ask that each employee join with me in a commitment to behave in a manner consistent with good taste, propriety, City and Department policy, and the law. Further, I ask that each employee join with me in a commitment to immediately either express concern and resolve, or immediately report, any behavior that appears associated with any form of harassment and/or discrimination.
Signature Signature
CHIEF OF POLICE EMPLOYEE’S ACKNOWLEMENT
Conclusion
Chief, you be the judge. Reflect on situations, with which you are familiar, where there were reservations about the legitimacy of claims of discrimination or harassment. Would the above document, signed by the employees and part their personnel files, have been potentially helpful in some (or all?) of the following ways:
- Articulating zero tolerance for both troublesome behavior and false allegations of troublesome behavior?
- Reducing the likelihood of false claims?
- Raising valid questions about both the motivation of the employees in troubling situations and the false allegations typically made, especially during litigation, that describes your department and your supervisors as having maintained an environment where misconduct is allegedly tolerated and where “victims” are reluctant to report misbehavior?
- Strengthening the ethical aspects of the complaint process?
- Increasing overall employee confidence in management’s handling of sensitive situations?
- Less organizational trauma surrounding allegations?
- Fewer worker compensation and disability retirement claims?
- Fewer and lesser monetary awards against the municipality?
- Stronger admissible evidence in support of the city when questionable claims are litigated?
- Fewer sleepless nights for the chief of police?
Unpublished Manuscript – However, distributed extensively