Finding the Facts - Disciplinary and Harassment Investigation

d) Incompetency.

e) Addiction to the use of controlled substances.

f) Failure or refusal to perform the normal and reasonable duties of the position.

g) Conviction of a felony or conviction of any misdemeanor involving moral turpitude.

h) Fraud in securing appointment.

i) Drunkenness on duty.

j) Violence or threats of violence in the workplace.

In addition, the source of the allegations of misconduct should be considered. For example, an anonymous letter claiming that an employee had parked a district vehicle in a “No Parking” zone would not necessarily justify an investigation of such an allegation. (However, a brief conversation with the implicated employee might well be in order). On the other hand, an anonymous letter alleging that an employee of a finance office has been seen removing money from a cash register and putting it in his pocket should prompt an investigation. If alleged misconduct involves harassment, discrimination, retaliation, or other illegal conduct including whistleblower retaliation, it is important that the district investigate and take prompt corrective action if warranted. Failure to conduct a prompt, fair, and thorough investigation in such cases could subject your district to liability under both federal and state law. Further, if allegations of harassment or discrimination are presented to a district in a formal complaint, Title 5 regulations require that an investigation be conducted within prescribed time lines (discussed in section 2.C below).

Be aware of any deadlines for completing the investigation and responding to the complainant. Investigators should review any applicable district policies, regulations, or Title 5 sections. 3

LCW Practice Advisor

B. W HEN T HERE IS A LLEGED OR S USPECTED D ISCRIMINATION OR H ARASSMENT In the case of harassment, the California Fair Employment and Housing Act 4 imposes an affirmative obligation on employers to take all reasonable steps necessary to prevent discrimination and harassment from occurring in the workplace. 5 To satisfy this obligation, employers must investigate complaints of discrimination or harassment. The Equal Employment Opportunity Commission 6 has also imposed a duty upon employers to investigate complaints of harassment. 7 In fact, case law establishes that once an employer knows, or should have known of possible harassment, failure to conduct any investigation at all may constitute an independent violation of federal law (Title VII). 8

Disciplinary and Harassment Investigations ©2019 (e) Liebert Cassidy Whitmore 9