What is “Reasonable Suspicion,” Where Do I Get It, and Why Do I Want It?

You AskedThe year was 1987. Two men were robbed and assaulted at night by someone dressed in dark clothes.

Three hours later, police officer Shelley Weber noticed something unusual about the person crossing the street in front of her squad car: He wore a black mask, hood, shirt, long coat, and pants. Only his eyes were visible.

He was a ninja.

When the ninja saw the squad car, he ran. Weber pursued him, eventually capturing the ninja with the aid of fellow officers. Evidence on his person linked him to the robbery.

Officer Weber chased the ninja because he fled when he saw her squad car, not because she thought he committed the robbery. The ninja, whose real name was Leroy Jackson, attempted to suppress the evidence Weber uncovered by arguing she did not have reasonable suspicion to stop him in the first place. 

The Colorado Court of Appeals upheld Jackson’s conviction, concluding that fleeing upon seeing Officer Weber, coupled with his ninja attire, supported Weber’s reasonable suspicion that he might be connected with criminal activity.

For employers, reasonable suspicion comes up most frequently in the contexts of civil rights complaints—specifically harassment—and drug impairment.

In some cases, ignorance can be your ally. Take the case of Mollala Transport v. Connes, a disturbing case involving a truck driver who raped a motel employee. The victim sued, arguing the trucking company had been negligent in hiring Terry Lee Taylor, who had a criminal record. Mollala never bothered to examine the criminal record. Had they done so, they may not have hired Taylor, and Connes may never have been attacked.

However, no law required Mollala to request Taylor’s criminal record, so they didn’t bother. And in the final analysis, the court held Mollala could not be held liable for Taylor’s criminal propensity, because the company wasn’t aware of it and was not required to investigate it.

But in a civil rights matter, ignoring signs of reasonable suspicion can be perilous for an employer. The proper standard is not only whether the employer knew bad behavior was taking place, but whether it should have known. I know of one employer who was found liable in an investigation simply because it had no bi-lingual employees to receive complaints of harassment. Had bi-lingual human resources representatives been available, the EEOC concluded, then complaints would have come early and often.

In the area of drug testing, it is important that employers be familiar with the signs and symptoms of drug use and be able to document them in order to cope with the two major drug-related challenges facing employers today: the prevalence of prescription drugs, and the evolving legal status of marijuana. An employee using legal drugs will often test negative, despite obvious impairment. It is critical that employers document what they observed to avoid backlash from an employee who feels they were unfairly targeted and now wishes to “even the score” with their employer.

If marijuana’s status under federal law changes, a positive drug test may no longer be sufficient to support a termination. It is foreseeable that an employer may—in the not too distant future—need to be able to offer additional evidence to prove the employee was impaired in the workplace. Properly documented reasonable suspicion provides this evidence.

It’s not enough to prohibit discrimination and harassment. When circumstances make you suspect something–for example, that some employees may be offended by one employee’s inappropriate screen saver–you should take action. Likewise, documenting what you perceive as the signs and symptoms of drug use will lessen your liability while improving your workforce.