On September 15, 2021, a divided panel of the Ninth Circuit Court of Appeals decided…
EVERYTHING YOU ALWAYS WANTED TO KNOW ABOUT SEX (HARASSMENT), BUT WERE AFRAID TO ASK
Lawsuit Prevention for Employers
EVERYTHING YOU ALWAYS WANTED TO KNOW ABOUT SEX (HARASSMENT), BUT WERE AFRAID TO ASK –
Only Lawyers and Licensed Private Investigators are Legally Authorized to Conduct Investigations
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 anti-discrimination 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 any supervisory employee is made aware of a complaint of harassment, employers are required by law to conduct a prompt, thorough and objective investigation. An investigation must be commenced promptly whenever a complaint is received. This includes situations when the claim may seem implausible.
Even before a complaint is received, all California employers are required to distribute a written policy prohibiting unlawful harassment, discrimination and retaliation. The written policy must state the procedures the employer will utilize if a harassment investigation becomes necessary, and include other mandatory information as well.
Once a complaint 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 objectively conducted means that, as a practical matter, employers are normally well-advised to engage a neutral third party, not employed or controlled by the employer, to conduct it.
Many employers are unaware that human resources professionals and business consultants are prohibited by law from conducting workplace investigations in California. In fact, California law makes it a crime for anyone who is not an attorney or licensed private investigator to conduct a workplace investigation.
Generally speaking, employers are required to commence 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.
As a result of this legal principle, it is imperative that supervisors are instructed to immediately communicate any complaint, no matter how seemingly minor, to the company’s decision-makers. Otherwise, the employer will likely be defenseless to not only a future harassment lawsuit, but to allegations that it unlawfully failed to conduct the legally-mandated investigation as well. 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;
- Whether all pertinent documents were identified and carefully considered;
- Whether the investigator thoroughly followed-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.
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. http://www.jaygputnam.com/articles-by-jay-g-putnam/