Finding the Facts - Disciplinary and Harassment Investigation

An employer always runs the risk of a retaliation claim whenever the employer disciplines an employee for making a false discrimination or harassment complaint because the discipline follows the protected activity of complaining. Employers are best advised to pursue discipline only when there is unequivocal evidence that the complaint was false.

LCW Practice Advisor

While a single severe adverse employment action such as termination or demotion will suffice to demonstrate retaliation, so too can a series of actions—including unwarranted criticism, unwarranted negative performance evaluations and solicitation of negative feedback from subordinates—which viewed together amount to an adverse employment action. 59 c. Violation of District’s Anti-Harassment Policy A district’s policy may be violated even if the conduct complained of does not constitute “unlawful” harassment. Many districts have policies that prohibit conduct that does not rise to the level unlawful harassment. In that case, the focus of the investigation is whether the district’s policy was violated – not whether the law was violated. d. Quid Pro Quo Sexual Harassment Quid pro quo harassment occurs when submission to sexual conduct is explicitly or implicitly made a condition of a job, a job benefit, or the absence of a job detriment. 60 It can include sexual propositions, unwarranted graphic discussions of sexual acts, or commentary on an employee’s body. 61 W HAT S TANDARD D OES AN I NVESTIGATION H AVE TO M EET ? As discussed above, the Fair Employment and Housing Act (FEHA) regulations were amended in 2016 requiring employers to create detailed written policies for preventing harassment, discrimination and retaliation. At its core, an investigation must be fair, thorough and timely initiated and completed. The FEHA Workplace Harassment Prevention Guide (Guide) provides critical guidelines on the entire investigative process (See Appendix N). Although guidelines do not pose legal requirements, they reflect best practices and a “gold star” standard. In evaluating an investigation and whether it complies with the 2016 FEHA regulations the DFEH will test it against the standards in the Guide and Courts are likely to also consider these guidelines in evaluating investigations. Accordingly, guidelines should be closely adhered to and are addressed throughout this workbook. Specifically, the Guide addresses (1) responding to a complaint of harassment; (2) the basic steps for a fair investigation; (3) confidentiality issues related to the investigation; (4) how quickly to begin and finish an investigation; (5) Section 3

Disciplinary and Harassment Investigations ©2019 (e) Liebert Cassidy Whitmore 19