California lawmakers and regulators in recent years have provided specific direction to employers about how to prevent and correct workplace harassment. For example, in 2016, the California Fair Employment and Housing Council (“FEHC”) issued regulations addressing specific information employers must include in workplace harassment, discrimination, and retaliation prevention policies, as well as refining requirements for workplace training and investigating complaints.
Earlier this month, the Department of Fair Employment and Housing (the “DFEH”), the state agency responsible for enforcing the state’s employment discrimination, harassment, and retaliation laws, issued a “Workplace Harassment Guide” to employers about how to prevent and correct workplace harassment. In contrast to much of the previous legal and regulatory guidance, the guide focuses on some of the more practical aspects of addressing workplace harassment.
An Overview of the Guide
- The DFEH guide provides an overview of the components of an effective anti-harassment program, including:
- An easily discernible policy, distributed and discussed regularly (such as every six months);
- “Buy in” from top management on understanding and demonstrating the policies in their own workplace behavior;
- Legally required, biennial managerial and supervisory training;
- Training for employees who handle complaints;
- Policies and procedures for investigations; and
- Legally compliant investigations and remedial action.
The guide mentions the importance of all these components. But it focuses primarily on policies and procedures for conducting investigations and taking remedial action.
Conducting a Fair Investigation
The guide provides direction to employers about how to conduct a “fair” investigation. The employer should obtain the complaining person’s and the accused employee’s version of events. The employer also should gather relevant evidence (such as witness statements and written documents), review and analyze the evidence, and reach a factual conclusion. Employers are advised to focus on whether the individual has violated the employer’s policy, not necessarily whether the individual has violated the law.
Confidentiality in Investigations
The guide also addresses how an employer should address confidentiality in an investigation—that the employer should disclose information on a “need to know” basis, but should promise only limited confidentiality to the accused or complaining employee. That is because information necessarily might be disclosed to witnesses during an investigation.
The DFEH warns employers requiring employees to maintain absolute confidentiality may run afoul of court rulings that employees have the right to discuss wages and working conditions. Because confidentiality during an investigation is important to preserve the integrity of the information provided by witnesses, employers should consult with counsel about how to walk the line.
Conducting an Investigation Promptly
The DFEH does not provide a particular timeline for completing an investigation. However, the agency emphasizes in the guide that investigations should be conducted and concluded promptly. At the same time, however, the DFEH acknowledges that investigators should take the time necessary to be thorough and fair, and may need to conduct urgent investigations—like those involving physical acts of violence or harassment—more quickly than others.
The guide touches on several recommended practices for workplace investigations. These include maintaining impartiality. An investigator should avoid creating the perception of bias. For example, an investigator should not investigate a complaint when he or she has a personal relationship with the complainant.
Another important consideration is the qualifications of the investigator. An investigator should be knowledgeable about standard investigatory practices and techniques, applicable laws, and how to analyze gathered information. Depending on the issue and the employer’s resources, employers may use their own employees, or hire qualified external investigators, including qualified, licensed private investigators or attorneys.
Although there is no standard training program to become a workplace investigator, the guide lists a number of entities that provide training, including professional organizations for Human Resources professionals or workplace investigators and enforcement agencies, including the DFEH. Such training should last at least a day, include “skill-building exercises,” and cover issues such as the applicable law, determining the scope of the investigation, effective interviewing techniques, weighing credibility, and analyzing information and writing a report.
Investigators should develop practices for documenting witness interviews and maintaining the documentation. The guide warns against “interrogation” style questioning. Rather, investigators should ask witnesses “open-ended questions” to get complete information. Open questions may help investigators assess witnesses’ credibility; for example, in “he said/she said” situations. The guide includes a list of factors an investigator can use to determine credibility, such as inherent plausibility, motive to lie, and corroboration.
Investigators should determine whether it is “more likely than not” that the alleged conduct occurred, which is the legal standard civil courts use (also called a “preponderance of the evidence”). On the other hand, an investigator should not make legal conclusions. Investigators may determine whether an employer’s policy has been violated, although it is often difficult for external investigators to do so, since employers are better to interpret their own rules.
The guide addresses “special” issues, including how to handle an employee who asks an employer not to do anything to address a complaint, how to investigate anonymous complaints, and how to prevent retaliation.
Implementing Effective Remedial Measures
The guide concludes by emphasizing that an employer should take steps to prevent and correct behavior when there is proof of misconduct, even if does not rise to the level of a policy or legal violation. The appropriate response may be to stop the behavior, impose discipline, or take other remedial steps (e.g., training, salary reductions, etc.) appropriate to the circumstances, and ensure the employer’s response is consistent with its actions in other similar situations.
What an Employer Should Do
Most of the information in the guide should not be new to employers. Instead, the guide is a brief summary of best practices. Employers should read through it, to ensure their practices are consistent. If an employer is unsure, it should consider utilizing some of the resources addressed in the guide to find more information, such as joining a professional organization or participating in training.