Finding the Facts - Disciplinary and Harassment Investigation

even if uttered by a colleague who is not a decision-maker, may be relevant evidence of discrimination. 188 This means that while the “severe or pervasive” standard will still apply to complaints under federal Title VII, complaints raised under FEHA will have a lower threshold to reach the issue of whether there was a hostile environment. The new law also states the legal standard for sexual harassment should not vary by workplace, and therefore employers cannot use as a defense that their particular industry or work- environment is more tolerant of certain behaviors. An employee will not need to show his or her “tangible productivity” declined as a result of harassment in a workplace harassment suit, and may instead show a “reasonable person” subject to the alleged discriminatory conduct would find the harassment altered working conditions so as to make it more difficult to work. 189

T HE S UBJECTIVE S TANDARD

Was the Conduct “Unwelcome”? Can the complainant establish that he/she perceived the conduct to be abusive? 190 That is, did the complainant consider the conduct to be hostile and/or abusive at the time it occurred?

Questions to consider which may be helpful in deciding whether conduct was unwelcome include the following:

 Did the complainant begin behaving differently around the time of the alleged conduct?

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Change in attitude

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Change in emotional state

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Change in work habits

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Change in work performance

 Less talkative, more isolated  Did the complainant see a therapist/psychologist at or around the time of the alleged conduct?  Did the complainant make a contemporaneous complaint or protest? For example:

 Did the complainant submit a written complaint?

 Did the complainant tell her/his supervisor?

 Did the complainant tell another supervisor?

 Did the complainant tell the harasser to stop?

 Did the complainant tell a co-worker?

 Did the complainant tell a friend? (not quite as credible!)

Disciplinary and Harassment Investigations ©2019 (e) Liebert Cassidy Whitmore 118