California employers must vigorously investigate harassment complaints

An employee’s complaint of harassment should trigger an investigation and corrective action, if necessary.

Most California employers are subject to federal and state anti-discrimination and anti-harassment laws. When an employee makes a report or complaint alleging sexual harassment or illegal harassment based on other protected characteristics like religion, race, age, disability and others, the employer has the legal duty to “prevent and correct” unlawful behavior, to quote state law.

Of course, the first step toward verifying and stopping unlawful harassment is a timely, fair and complete investigation into the allegations. In fact, both state and federal civil rights laws require appropriate investigation of a harassment complaint. Failure to do so may open the employer to liability in a lawsuit by the accusing or reporting employee.

Official guidance concerning investigation sufficiency

The California Department of Fair Employment and Housing (DFEH) is the state agency tasked with enforcing the state’s anti-discrimination and anti-harassment laws, including the Fair Employment and Housing Act (FEHA). DFEH issued a guidance document for employers to help them comply with the law and prevent harassment.

An employer may decide to conduct the investigation using its own staff – if they are qualified, experienced and professionally trained in investigatory processes – or it could hire an outside investigator, who must be either a licensed private investigator or an attorney. Sometimes this decision will be based on the severity and nature of the complaint. It can also be a factor whether there are internal personnel qualified to investigate who can appear unbiased, depending on interpersonal and professional relationships within the organization.

The DFEH guidance document provides recommendations for robust, law-conforming harassment investigations. While written for employers, it gives employees an understanding of what they should be able to expect when they make an internal harassment complaint. For example, the employer should:

• Comprehensively interview the reporting employee.
• Clearly articulate the allegations to the accused party so they can respond. Conduct a thorough interview about the circumstances.
• Interview any witnesses with potentially relevant knowledge.
• Conduct interviews using questions that are open-ended, not leading and not accusatory.
• Review any documents or communications, including electronically stored data, that are potentially relevant.
• Gather any other important evidence.
• Conduct a thorough, objective analysis of relevant evidence to make reasonable credibility assessments and factual findings, using the “preponderance of the evidence” – also called the “more likely than not” standard – when weighing evidence.
• Take corrective action when the investigator finds that harassing behavior or violation of company policy has occurred, such as discipline, termination, resetting expectations, training and other actions to eliminate harassing behavior.
• Address findings, employer responses and expectations with all involved parties.

Of note, should the allegations involve “claims of physical harassment or a threat of violence” the employer should act the same day they receive the information to keep the workplace and all employees safe.

Seek legal advice

It can be helpful for any California employee who has experienced workplace harassment – sexual or based on another protected characteristic – to consult an employment lawyer for assistance and advice about reporting the allegations to the employer and participating in the investigation.

If the employee has already made the complaint but is concerned about the employer’s response, it is never too late to seek legal counsel. The attorney can provide information about potential legal remedies like an agency complaint or a lawsuit should the investigation be insufficient or if the employer takes other illegal actions, including retaliation against the reporting employee.

At The Law Offices of Daniel Feder in San Francisco, we fight for the legal rights of employees throughout the Bay Area and the region who face sexual harassment as well as other kinds of unlawful harassment in the workplace.