Finding the Facts - Disciplinary and Harassment Investigation

 The conduct is so severe or pervasive that it creates an objectively hostile or abusive work environment. Effective January 1, 2019, this standard no longer applies and a single incident of harassing conduct will be sufficient to create a triable issue of fact regarding the existence of a hostile work environment. 49 And

 The alleged victim subjectively perceives the environment to be abusive. 50

Most districts have policies that prohibit harassing conduct that does not rise to the level of unlawful harassment. Therefore, the investigation must determine whether there was a violation of district policy.

Cases on Point:

Herberg v. California Institute of Arts 51 An employee claimed she was subjected to a hostile work environment based on a piece of art displayed on the employer’s premises depicting the employee engaged in a sexual act. The piece of art was displayed for a 24-hour period. The court rejected the claim and held that liability for sexual harassment may not be imposed based on a single incident that does not involve outrageous conduct, such as an assault. 52 Fuller v. City of Oakland 53 An employee prevailed on a claim of sexual harassment against a co-employee and the employer. The employee and co-employee mutually dated for a few months. After the employee called off the relationship, the co-employee (1) threatened to kill himself, (2) forced the employee to drive off the road, (3) forcibly obtained the employee’s unlisted phone numbers, and (4) left several unsolicited telephone messages for the employee. 54 Jacobus v. Krambo Corp. 55 However, an employee did not prevail on a claim of sexual harassment against a co-employee based on mutual sexual banter. The employee and co-employee frequently engaged in sexual conversations, socialized outside of the workplace, and joked about going to a strip club together. The co-employee also shared sexually explicit materials with the employee at the employee’s request. 56

b. Retaliation Retaliation against a person who brings a good faith complaint of discrimination or harassment or participates in an investigation of discrimination or harassment, is unlawful and violates most districts’ policies. Even if discrimination or harassment is not found to have occurred, if the complaint was made in good faith, the employee may not be retaliated against for making the complaint. 57 However, a filing of a fabricated complaint is not protected and an employee can be disciplined for filing a false harassment complaint. 58

Disciplinary and Harassment Investigations ©2019 (e) Liebert Cassidy Whitmore 18