Finding the Facts - Disciplinary and Harassment Investigation

Valentín v. Municipality of Aguidilla 18 And a jury found in favor of an employee in a harassment case where the district did not conduct an investigation after (1) the employee complained to the designated complaint-receiver, lieutenant in charge of internal affairs investigations, the Police Commissioner, and the Mayor, (2) the accused and his friends admonished and disciplined the employee, and (3) the employee took 2 leaves of absence due to stress from the harassment. Dept. of Fair Employment & Housing v. Lyddan Law Group 19 DFEH may prosecute an action for failing to take all reasonable steps to prevent harassment as an independent violation even where there is no legally actionable claim of harassment.

Bottom line: To promote effective operations and avoid liability, investigate promptly.

A prompt investigation can assist in stopping discriminatory or harassing behavior, sends a message that the employer takes the complaint seriously, helps protect the preservation of evidence (including physical evidence such as emails and videos, and witnesses’ memories), and allows the employer to fairly address the issues in a manner that can minimize disruption to the workplace and individuals involved. 20

C. B EFORE THE I NVESTIGATION B EGINS

1. F OLLOW THE D ISTRICT ’ S I NVESTIGATION P ROCEDURE One of the requirements in meeting the obligation to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct is to have a discrimination and harassment policy. Districts must have a policy and that policy must include a complaint and investigation process. 21 The courts, the EEOC, and the DFEH expect agencies to closely follow those procedures in responding to complaints of discrimination, harassment, and retaliation, including to abide by all the time lines. The Fair Employment and Housing Council adopted amended regulations, effective April 1, 2016, addressing certain components that must be included in an employer’s written internal complaint process. An employer’s written internal complaint process must provide that:  Employees’ complaints are designated confidential, to the extent possible, although the employer is not required to keep the investigation of the complaints completely confidential.

 Complaints are responded to and closed in a timely manner.

 Allegations of misconduct are investigated in a fair, timely, and thorough manner, that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected.

 Complaints are investigated by qualified personnel.

Disciplinary and Harassment Investigations ©2019 (e) Liebert Cassidy Whitmore 12