Everything You Wanted to Know about Sex...Harassment

Attorney at Law
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523 “B” STREET
PETALUMA, CALIFORNIA 94952
TELEPHONE (707) 778-5000
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FACSIMILE (707) 778-5005
E-MAIL:  jaygputnam@gmail.com
 
 
July 15, 2017
 
 
HEADS UP!
Lawsuit Prevention for Employers
 
 
EVERYTHING YOU ALWAYS WANTED TO KNOW ABOUT SEX
(HARASSMENT), BUT WERE AFRAID TO ASK
 
Only Lawyers and Licensed Private Investigators Can Legally 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 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 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, even in situations when the claim may seem implausible.
 
Even in the absence of a complaint 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 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 objectively conducted means that, as a practical matter, the employer must engage a neutral third party, not employed or controlled by the employer, to conduct it.
 
Many employers are unaware that human resources 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 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.
 
Since 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:
 

1. Was the investigation conducted by an unbiased, legally-qualified investigator;
2. Whether the investigation was conducted objectively;
3. Whether all relevant witnesses were carefully interviewed;
4. Whether all pertinent documents were identified and carefully considered;
5. Whether the investigator thoroughly followed-up on the information revealed by witnesses and documents;
6. Whether the investigator produced a fair and objective analysis of the evidence produced.