Workplace investigations are becoming more and more necessities of doing business. Prior to the advent of modern state and federal employee rights laws, the notion of investigating employee complaints was the exception or a matter of choice on the employer’s part. Now, an employer’s failure to acknowledge and/or respond to an employee’s complaint of harassment, discrimination or retaliation can serve as an independent basis of employer liability.
What Kind of Investigation Is Required
The Fair Employment & Housing Act (California Government Code §§12900 – 12996), which is otherwise known as the “FEHA,” is California’s state statutory anti-discrimination law. Title VII of the Civil Rights Act of 1964 is the FEHA’s federal counterpart. Neither statute contains specific language obligating an employer to initiate investigations in response employee complaints of objectionable behavior. However, under both statutes employers are required to take measures aimed at keeping discrimination and harassment from occurring. (See Cal. Gov. Code Section 12940(j) (1) and (k)), requiring employers to “take all reasonable steps to prevent discrimination and harassment from occurring . . .”; see also, Title VII (Civil Rights Act of 1964, 29 CFR Section 1604.11(f), requiring employers to “take all steps necessary to prevent harassment from occurring”). Based on the broad language of both statutes, state and federal courts have interpreted the FEHA and Title VII as imposing an affirmative duty on employers to investigate employee complaints of discrimination and harassment. (See, e.g., Sheffield v. Department of Social Services, 109 Cal.App.4th 153, 164 (2003), re the FEHA; Hardage v. CBS Broadcasting Inc., 427 F.3d 1177, 1185-86 (9th Cir. 11-1-2005), re Title VII.)
Hence, where an employer does receive an employee complaint of harassment, retaliation or harassment, the employer needs to respond in some form or fashion. Guidelines promulgated by the Equal Employment Opportunity Commission (EEOC) instruct that an employer’s investigation needs to be prompt, thorough and impartial; that interviews be conducted of the accuser and accused; and, upon a determination of wrongdoing, that such conduct be prevented from happening again. In terms of keeping unlawful conduct from happening again, that may require terminating the individual or individuals who violated the law and/or employer’s internal policies and, if required, may require that the employer strengthen its internal anti-discrimination and harassment policies.
We Can Help
At the Law Office of George G. Romain we guide employers in conducting their workplace investigations and, more importantly, in identifying faults, gaps or deficiencies in their internal anti-discrimination policies. Investigations must be conducted properly as every case of alleged discriminatory or retaliatory conduct is different. Do you hire an outside investigator to conduct the investigation or do you conduct it internally? What should or should not be placed in an employee’s personnel file as a result of any such investigation? What should an investigative report say and not say? These are just a few examples of the questions we can and will help you answer in order to that you may foster a healthy work environment, and limit if not prevent liability exposure altogether.