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Best Practices From The California DEFH’s Workplace Harassment Guide

Published by and on May 25, 2018

California employers should look toward the Department of Fair Employment and Housing’s guidance when conducting investigations into misconduct in the workplace.

Last year, the California Department of Fair Employment and Housing (DFEH) released a Workplace Harassment Guide For California Employers (“Guide”), which provides further guidance, in addition to 2016 regulations, to California employers regarding their obligation to prevent and correct wrongful behavior in the workplace. The Guide notes the necessity of an effective anti-harassment program that includes a clear and understandable written policy that complies with the regulations and is regularly reviewed and distributed. An anti harassment program should also include training for supervisors and managers (which is mandated by law) and for complaint handlers. Management should be “role models” of appropriate behavior.
Additionally, an effective anti-harassment program should include specific procedures for responding to and investigating complaints. Below is an overview of best practices from the Guide for employers conducting investigations into harassment and discrimination complaints:

  1. Conduct A Fair Investigation: Try to start an investigation with a thorough interview of the complaining party, preferably in-person, and then conduct an interview (again, in-person if possible) of the accused party. The accused should be told the allegations against him/her during the interview, although the complainant’s identity may not have to be revealed. Relevant documents should be preserved and reviewed, and other relevant witnesses should be interviewed. Employers should tell witnesses that retaliation based on their participation in an investigation is prohibited. Further steps may sometimes be required to get a full understanding of the situation, such as viewing videos, taking pictures, etc.
  2. Limit Sharing Of Information From Investigations On A “Need-To-Know” Basis, But Be Cautious About Requiring Employees To Keep Quite: While employers should not promise complete confidentiality of information gathered during investigations, employees should limit the sharing of such information only to those who “need to know.” Managers, however, should consult with counsel before requiring employees to keep information confidential, as several courts have ruled that employees have right to talk about workplace conditions.
  3. Conduct A Prompt, Thorough Investigation: Investigations should be initiated and concluded promptly after the employer receives a complaint, but investigations should also be thorough. Employers may want to add specific timelines, if feasible, to its policies for responding to and investigating complaints. While no set timeline is required by law, employers should strive to contact the complainant within a day or two (or immediately if the matter is urgent) and finish the investigation in a few weeks.
  4. Be Impartial And Knowledgeable About Investigation Practices: An investigator should have knowledge of standard investigatory practices and relevant laws. While there is no standard investigator training program, investigators should receive some type of training regarding recommended investigation practices, determining an investigation’s scope, interviewing witnesses, weighing credibility, and analyzing and compiling information.
  5. Ask Open-Ended Questions And Assess Credibility: Investigators should not cross examine parties but rather ask open-ended questions to elicit information. In many cases, an investigator must make a credibility determination based on the information gathered. Examples of factors to consider when determining credibility include the plausibility of the allegations, a party’s motive to lie, corroborated or inconsistent witness statements, witness’ history of dishonesty, consistency with party’s habits, and the directness of answers given.
  6. Stick To Factual Conclusions, Not Legal Conclusions: Investigators should typically only make conclusions about the facts and therefore, should reach a factual conclusion that is supported by a preponderance of evidence. Making factual conclusions may also involve a determination of whether certain behavior did or did not violate a company policy.
  7. Document, Document, Document: Investigators should document all steps of the investigation (and retain this documentation), which can include taking notes or drafting or obtaining witness statements. The findings of an investigation should also be documented.
  8. Implement Remedial Measures: Employers should take appropriate steps to address and correct misconduct, even if it does not rise to the level of unlawful behavior or a policy violation. In administering remedial measures, employers should strive to use similar measures in similar situations (e.g., administer the same discipline for the same misconduct).

Welter Insight

While the DFEH’s Guide does not have the force of law, it is a useful tool for employers in complying with their legal obligation to take reasonable steps to prevent discrimination and harassment from occurring in the workplace.

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