Finding the Facts - Disciplinary and Harassment Investigation

Even though Myers never complained to Trendwest about Damlahki’s behavior until after she was terminated, the Court held that evidence that Myers was committed to a mental hospital shortly after the groping during the “driving for dollars” trips demonstrated that she subjectively found the workplace to be abusive and hostile. As for Myers’ claim for failure to take reasonable steps to prevent sexual harassment, Myers claimed that Trendwest never advised her of the legal remedies and complaint process available through the Department of Fair Employment and Housing and the Fair Employment and Housing Commission, as required by FEHA. Trendwest’s evidence demonstrated that it distributed a DFEH pamphlet to employees, but it did not show that the pamphlet was distributed during Myers’ employment. Trendwest’s notification to employees of its own grievance procedures was insufficient under FEHA and Trendwest was not entitled to summary judgment. 227 Employer Does Not Waive Attorney/Client Privilege and Attorney Work Product Doctrine by Pleading the Adequacy of a Pre-Litigation Investigation as a Defense to Employee Discrimination or Harassment Claims When the Internal Investigation was Done Internally by Non-Attorneys The California Court of Appeal has held that in those cases if an employer conducts an internal investigation of allegations of harassment or discrimination, the investigation is done by a non- attorney, and the adequacy of the pre-litigation investigation is alleged as a defense, the employer cannot be compelled to produce documents otherwise protected by the attorney/client privilege or the attorney work product doctrine. When it became known to the chief physician at a Kaiser Hospital that one of its doctors had engaged in inappropriate sexual conduct, Human Resources Consultant Henry Diaz conducted an investigation into the allegations. Diaz interviewed more than ten witnesses, made notes of these interviews and produced a report. Diaz sometimes conferred with legal counsel regarding the investigation and sometimes intermingled these notes with the other investigation documents. After the complaint for sex discrimination and harassment by Kaiser employees was filed regarding these incidents, the alleged victims requested and Kaiser produced the investigation files. Kaiser withheld those documents protected by the attorney/client privilege and/or the attorney work-product doctrine. The alleged victims asserted that so long as the adequacy of the pre-litigation investigation was a defense to the lawsuit, all documents, including those otherwise protected by the attorney/client privilege or attorney work product doctrine, must be produced. The trial court granted a motion to compel the production of these documents and required Kaiser to produce them within ten days. No explanation was given. Kaiser filed a petition for peremptory writ of mandate, asking for an immediate stay and a writ of mandate directing the trial court to set aside and vacate its order granting the motion to compel. The Court of Appeal reversed the decision of the trial court, and directed it to set aside its order granting the motion to compel. The Court held that so long as the investigation was performed by a non-attorney, the assertion of the defense of the adequacy of the investigation does not act as a waiver of the attorney/client privilege or the attorney work product doctrine. The non- privileged aspects of the investigation must be produced, however. The Court found that there

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