When a California employer learns about a possible workplace harassment case, the best move is to take prompt, reasonable and effective corrective action, including:
- Taking immediate action to protect employees from harassment pending an investigation,
- Conducting a thorough investigation of the harassment complaint,
- Promptly informing all parties of the results of the harassment investigation, and
- Taking appropriate corrective action to enforce the employer's anti-harassment policy.
Following these steps can help the employer either
- shield itself from liability in a potential harassment lawsuit under California's Fair Employment and Housing Act (FEHA), or
- if liability is unavoidable, limit economic damages in a lawsuit.
A quick and thorough response to a harassment complaint is always a good idea--regardless of whether the reported harassment is sexual harassment or non-sexual harassment, and regardless of whether the alleged harasser is a supervisor or another employee.
What this means will depend on the circumstances. While an employer is responsible for stopping any harassing behavior that is clearly occurring, this does not mean that it must always believe allegations of harassment, or must always fire the alleged harasser.
The California labor and employment attorneys at Shouse Law Group recommend that an employer take the following seven (7) steps when an employee comes forward with a complaint of harassment.
Step 1: Listen attentively to allegations of harassment
This one sounds obvious, but close, active listening is a critical part of a smart employer response to allegations of workplace harassment for several reasons.
First, an employee who is invited to tell his/her story in full will feel listened to and validated by the employer. This in turn will encourage him/her to see the employer as an ally, not an adversary, in confronting the workplace harassment.
Second, careful listening will help the employer gather important details at the outset. Understanding exactly what lies behind allegations of sexual or non-sexual harassment will allow the employer to take the most appropriate immediate action and structure an investigation intelligently.
Step 2: Take immediate action pending an investigation
A full investigation is required to address a complaint of workplace harassment, but this takes time. In the meanwhile, an employer should act immediately to protect any potential victims of alleged harassment.
How best to take this immediate protective action depends on the circumstances. But the goal should be to ensure that an alleged harasser will not have the opportunity to engage in further harassment or to retaliate against the person raising the workplace harassment complaint. (Retaliation against employees for harassment or other FEHA violation complaints can lead to further liability for an employer.)
Our employer clients frequently find the following immediate preventative measures to be appropriate:
- Altering work assignments so that the alleged harasser no longer works with or supervises the alleged harassment victim;
- Altering schedules so that the alleged harasser no longer works with the complaining employee or with other potentially vulnerable employees; and/or
- In some very serious cases, placing the alleged harasser or the alleged harassment victim on an appropriate leave from employment.
Step 3: Investigate the harassment complaint
A thorough investigation may be the most important step a California employer should take in response to a complaint of workplace harassment under the FEHA.
If at all possible, our California employment lawyers generally recommend that an employer hire a qualified, neutral third party to investigate harassment complaints. These neutral investigators tend to be employment lawyers or retired judges.
(But because of the sensitive nature of harassment, it is advisable to first ask permission from the person complaining before bringing in a third party investigator.)
No matter who performs the investigation, though, a through harassment complaint investigation should have the following characteristics:
- A harassment investigation should involve comprehensive interviews of the person complaining of harassment, the alleged harasser and any witnesses.
- Each person interviewed should be told that information gathered will only be disclosed to those with a legitimate need to know, and instructed to maintain confidentiality themselves.
- Everyone involved with the investigation should keep the details confidential to the extent possible (but all parties should understand that complete confidentiality cannot be guaranteed).1
- Investigators should not force a confrontation between the accuser and the alleged harasser.
- Finally, everyone who participates in the investigation should be assured that they will not be retaliated against in any way for their participation.
Step 4: Draw reasonable, good-faith conclusions about the harassment complaint
Step 4 in a good plan for addressing complaints of harassment is drawing conclusions based on the results of the investigation.
This may be one of the most challenging steps among those that our employment attorneys recommend to employers facing harassment allegations. During the investigation, the accuser and the accused harasser may tell very different stories. Faced with contradictory versions of events, it can be quite difficult to determine whether workplace harassment actually occurred.
The difficulty for California employers here is especially acute because liability under the Fair Employment and Housing Act for failing to respond sufficiently to a harassment case is not all they have to worry about. Overreacting to a harassment complaint--and taking harsh disciplinary measures against the alleged harasser--could lead to a wrongful termination lawsuit or other employment law troubles from the alleged harasser.2
Fortunately, employers facing workplace harassment complaints are not required to be master sleuths. The expectation is only that they will:
- investigate accusations in reasonable ways,
- draw rational conclusions, and
- act in good faith.3
Step 5: Inform both parties of the results of the investigation into the alleged harassment
After completing an investigation of a sexual or non-sexual harassment complaint and drawing reasonable conclusions, an employer should promptly inform both the alleged victim and the alleged harasser about the results of the investigation.
Generally, the conclusion of the harassment investigation will be one of the following:
- The employer concludes that harassment occurred, or
- The employer is unable to confirm that harassment occurred. (It is usually impossible to determine with certainty that harassment did not occur.)
Our employment attorneys recommend that employers create a written letter or memorandum to both the person complaining of workplace harassment and the alleged harasser that does the following:
- Briefly explains the results of the investigation,
- Reiterates the employer's policy against harassment, and
- Outlines the next steps to ensure that no harassment takes place going forward.
This written documentation may be helpful later on, in the event of a workplace harassment lawsuit under the FEHA, to show that the employer took reasonable steps to prevent and correct harassment.
Step 6: Take appropriate remedial measures
If the employer concludes, based on the investigation, that workplace harassment under the FEHA probably did occur, the employer should take all reasonable steps to:
- protect the interests of the harassment victim, and
- enforce its anti-harassment policy (the employment attorneys at Shouse Law Group recommend that all California employers have such a policy in place).
In certain cases, this may mean terminating the employment of the person who committed sexual harassment or non-sexual harassment. However, the law does not necessarily require this.4
On the other hand, it would not be enough to simply tell the harasser not to bother the accuser any more. Some disciplinary action against the harasser would clearly be warranted, probably with a warning that any further misconduct would be grounds for termination.
In addition, to protect the interests and well-being of the harassed person, it may be best to physically separate the harasser and the harassed person, to the extent possible.
If the harasser is the direct supervisor of the harassed person, transferring the harassed person to a different supervisor is definitely advisable.
If this is done, however, it is important that the harassed person suffers no detriment in the terms, conditions, and opportunities of employment. (If this were to occur, the employer might be liable for retaliation in violation of the FEHA.5)
What if the allegations of workplace sexual harassment or non-sexual harassment are not confirmed? Even in this case, the employer should still take reasonable steps to protect the interests of the alleged victim.
Discipline of the alleged harasser would not be warranted in this case. But it may still make sense to separate the two people involved, or to transfer the purported victim to another supervisor.6
Step 7: Reevaluate employer's harassment policy and implementation
Right after being forced to respond to a workplace harassment complaint is a perfect time for an employer to re-evaluate its existing anti-harassment policy.
Even if the investigation proves inconclusive, the employer is on notice about possible harassment occurring at its workplace. For this reason, it is even more imperative for an employer to take all reasonable measures to prevent any future incidents of workplace harassment.
Questions an employer might want to ask about its anti-harassment policy following the investigation of a sexual harassment or non-sexual harassment complaint include:
- Is there anything confusing or unclear about the current harassment policy?
- Does the current harassment policy accurately reflect the current definition of workplace harassment under the Fair Employment and Housing Act?
- Has the employer done a sufficient job of communicating the anti-harassment policy to all employees and to new employees?
- Were the procedures for addressing harassment complaints set forth in the employer's harassment policy appropriate for the complaint that was just investigated? Do these procedures need to be clarified or revised?
Call us for help . . .
For questions about how California employers should respond to complaints about workplace harassment under California's Fair Employment and Housing Act, or to discuss your case confidentially with one of our skilled California labor and employment attorneys, do not hesitate to contact us at Shouse Law Group.
We have local employment law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
- California Code of Regulations 11023 CCR -- Harassment and Discrimination Prevention and Correction. ("(b) . . . (8) [An anti-harassment policy that] States that confidentiality will be kept by the employer to the extent possible, but not indicate that the investigation will be completely confidential.
- Cotran v. Rollins Hudig Hall Int'l, Inc. (2002) 17 Cal.4th 93.
- Same, at 109. ("On retrial, the jury should be instructed, in accordance with the views we have expressed, that the question critical to defendants' liability is not whether plaintiff in fact sexually harassed other employees, but whether at the time the decision to terminate his employment was made, defendants, acting in good faith and following an investigation that was appropriate under the circumstances, had reasonable grounds for believing plaintiff had done so.")
- See Barrett v. Omaha Nat'l Bank (8th Cir. 1984) 726 F.2d 424, 427.
- Government Code 12940 GC -- Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions [Fair Employment and Housing Act; anti-harassment law]. ("(h) For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.")
- See Swenson v. Potter (9th Cir. 2001) 271 F.3d 1184, 1196. ("After conducting an investigation, the Postal Service here concluded that it could not support a case of sexual harassment against Feiner. That, of course, is quite different from saying that the harassment didn't happen. In deciding whether to punish Feiner, the Postal Service could properly take into account that Feiner was covered by a collective bargaining agreement, and so had the right to grieve any discipline imposed on him. Having concluded that it had insufficient evidence to sustain a charge of harassment, the Postal Service had an entirely legitimate reason for declining to discipline Feiner and resorting to other methods of remedying the situation.")