On September 15, 2021, a divided panel of the Ninth Circuit Court of Appeals decided…
Lawsuit Prevention for Employers
California employers are required by law to take reasonable measures to prevent discrimination and harassment in the workplace.
This standard applies to situations involving sexual harassment, workplace intimidation, violence and all other forms of discriminatory or harassing conduct.
The Fair Employment and Housing Act (“FEHA”), California’s primary antidiscrimination statute, states that the failure to take all reasonable steps to prevent discrimination and harassment constitutes an independent violation, in addition to any acts of harassment or discrimination found to have occurred.
When An Investigation Is Required
California courts have held that, once notified of alleged harassment, conducting a prompt, thorough and objective investigation is required of employers. An investigation must be commenced promptly whenever an employee complains of harassment, even when the claim may seem implausible.
Even in the absence of such complaints, a written policy prohibiting unlawful harassment, discrimination and retaliation is required by law. The written policy must state the procedures the employer will utilize in connection to the required investigation, and include other mandatory information as well.
In the event that a claim of discrimination or harassment is made, employers can expect the trier of fact, (usually a jury), to carefully examine the quality, promptness and objectivity of the employer’s investigation, as well as the employer’s compliance with its own written policy.
Who Conducts Investigations?
The requirement that workplace investigations be objective and impartial means that, as a practical matter, the employer must engage a neutral third party expert, not employed or controlled by the employer, to conduct it.
Importantly, California law requires the individual conducting the investigation to be a licensed private investigator, unless he/she meets the limited exceptions set forth in the statute.
For example, attorneys can conduct the investigation, if such matters are within the attorney’s expertise. However, human resources and business consultants are prohibited by law from conducting workplace investigations in California.
Generally speaking, employers are required to conduct an investigation promptly upon receiving notice that a complaint of discrimination, harassment or retaliation has been made, even if the complaint is made verbally and informally. Because the acts, statements and knowledge of supervisory employees are imputed to the employer under California law, notice to any supervisor triggers the employer’s duty to investigate.
Thus, it is imperative that all supervisor employees be aware of the importance of communicating any complaint, no matter how seemingly minor, to the company’s decision makers immediately. Otherwise, the employer will likely be defenseless to not only a future harassment claim, but to charges that it unlawfully failed to conduct the legally mandated investigation. A supervisor’s failure to actually notify his/her superiors is no defense.
What Is A Lawful Investigation?
California courts, in evaluating the legal adequacy of a workplace investigation, have considered the following factors:
- Was the investigation conducted by an unbiased, legally-qualified investigator;
- Whether the investigation was conducted objectively;
- Whether all relevant witnesses were carefully interviewed;
- Were all pertinent documents identified and carefully considered;
- Did the investigator thoroughly follow-up on the information revealed by witnesses and documents;
- Whether the investigator produced a fair and objective analysis of the evidence produced.
The investigation must include a good faith, impartial and thorough approach to resolving credibility issues when, as is typical, the parties give differing versions of pertinent events.
It is clearly insufficient, for example, for the investigator to simply conclude that, because the accuser and alleged harasser provide conflicting versions of events, the allegations could not be established.
The Bottom Line
When it occurs, workplace harassment invariably worsens in severity over time. As a result, when a legally deficient workplace investigation exonerates the accused harasser, allowing him/her to remain in the workplace, the alleged victim is typically subjected to accelerating harassment, retaliation or worse.
If the employer is sued, its fate will usually depend on the quality of the employer’s investigation. If the jury concludes that the harassment occurred, and that a half-hearted or flawed investigation enabled the harasser to continue in his/her job and to resume making the claimant’s life miserable, the employer will likely be viewed as an active participant in the harassment, and can expect to learn, the meaning of “punitive damages.”
Jay G. Putnam is a Petaluma labor lawyer who has specialized in representing California employers for over three decades. His practice is devoted to preventing lawsuits against his clients, without sacrificing workplace authority or management prerogatives.
While no one can guarantee a future free of lawsuits, Putnam has compiled a remarkable record of success: Not one employer-client has been sued in 36 years with his system of precautions in place.
For those clients who have arrived with pending lawsuits, Putnam has established an excellent track record of success as well.
You are invited to visit Mr. Putnam’s website, where you will find in-depth discussion of the most common mistakes made by California employers, and how to avoid them. www.jaygputnam.com/articles-by-jay-g-putnam/