Like employers across the country, California employers have a responsibility to provide their employees with a workplace free from harassment and discrimination, and free from retaliation against employees who report unlawful conduct of coworkers or supervisors to authorities. But California’s law is more stringent than most other jurisdictions, and California employers must carefully plan ahead to ensure they comply with state law.
Employers’ obligations as to claims of harassment, discrimination, and retaliation begin long before an employee makes a claim to his or her employer that unlawful employment conduct is occurring. For example, California law makes harassment of an employee “unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.” It further requires an employer to “take all reasonable steps to prevent harassment from occurring.” This means that an employer must effectively keep their “ear to the ground.” They can’t simply wait for a complaint to be made by the affected employees if the employer is on reasonable notice that unlawful activity is occurring.
Part of taking the required preemptive approach is implementing a comprehensive workplace policy against harassment, discrimination, and retaliation, and developing a reporting procedure for employees to take advantage of when they perceive they are the subject of such unlawful behavior. Once these policies and procedures are developed, it is vital to advise employees of these policies and procedures in writing. This vital step is important not only to comply with California’s public policy, but to also provide an employer with potential defenses when an accusation of unlawful harassment, discrimination, or retaliation is made.
In accord with a public policy that emphasizes a preventative approach, California requires all employers to post a sexual-harassment-prevention notice that advises employees of their right to a harassment-free workplace. Similarly, the policies and procedures developed by the employer to should similarly be communicated to the employee as part of readily-available postings, or, more commonly, by inclusion in an employee handbook adopted by the employer.
Adopting appropriate policies and procedures can be helpful in preventing unlawful conduct or providing a defense for an employer when certain types of employment harassment occur. But in California, adopting such policies and procedures is not an adequate defense all circumstances where unlawful harassment, discrimination, or retaliation occurs. Where a manager or supervisor discriminates against, harasses, or retaliates against a subordinate, an even-more stringent duty falls on the employer. It is therefore especially important that managers and supervisors are adequately trained in the employer’s anti-harassment, discrimination, and retaliation policies and are familiar with these policies and procedures.
This is because California is a “strict-liability state” when it comes to harassment, discrimination, or retaliation that is participated in by a supervisor. This strict liability means that an employer will in most instances be automatically liable for the unlawful conduct of its managers and supervisors without regard to the policies adopted and training provided by that employer.
California law’s reach is broad. It also requires employers with 50 or more employees to biannually train all supervisors on sexual harassment. Such training must be done by a qualified individual and provide at least two hours of comprehensive training on how to identify and prevent sexual harassment in the workplace. Failure to provide such training when required can subject an employer to regulatory audits and fines.
As part of the employer’s duty to prevent workplace harassment, discrimination, and retaliation, California law also mandates that employers take appropriate corrective action when there is an allegation of such conduct. What is “appropriate corrective action” is hard to define and will often depend on the circumstances. But in many instances, appropriate corrective action begins with an investigation.
While managers and supervisors should be able to spot harassment, discrimination, and retaliation, companies should appoint one or more individuals identified as disinterested to investigate complaints of harassment and discrimination. The disinterested party appointed to conduct investigation of complaints can often be a human resource director or a manager, however, there may be instances where the circumstances of the complaint require individuals outside of the employees chain of command to conduct the investigation.
When there is a claim of sexual harassment, it is sometimes preferable for the investigator to be of the same gender as the victim. Thus, companies may need to have and should identify more than one individual who has the potential to serve as an investigator in an array of differing circumstances, i.e., gender versus race discrimination claims, sexual harassment versus whistleblower retaliation claims. The right person for one type of investigation may be the exact wrong person for another type, and the employer’s use of that wrong person may exacerbate the employer’s liability rather than attenuate it.
One of the most important aspects of any investigation is that it be neutral and objective. Thus, some companies choose to have a neutral third party, such as an employment law attorney or an employment consultant, involved in or conduct the investigation. To further encourage objectivity, employers may also appoint different individuals to be involved at each separate stage of the investigation, i.e., the fact finding, determination, and, if necessary, disciplinary stages. When creating and carrying out anti-harassment plans and investigations and training managers and supervisors, employers should be aware that, generally, they have an obligation to treat similar complaints in a similar manner.
Once an employee makes a complaint, the employer should immediately begin an investigation. The first step is generally getting a full narrative of the event or events from the employee. Many companies have complaint forms that ask for facts such as the date, time, and location of the underlying incident, all employees involved and any witnesses to the incident, and the nature of discrimination. If the employer does not have a form, the individual investigating the claim should collect this information from the employee.
After the employee has filed a complaint, it is also important to assure the employee that he or she will not be retaliated against as a result of making the complaint. It may be necessary to take interim or temporary employment action after the complaint is made and during the investigation, especially if there is a risk of continuing harassment or discrimination while the investigation is ongoing. Sometimes, the employee filing the complaint may want to be reassigned or may welcome some time off. Many employers chose to separate the alleged harasser from the complaining employee. If the alleged harasser is a supervisor or cannot be separated from the complaining employee, an employer may choose to have the alleged harasser stay home until the investigation is finalized.
But note, the type of temporary employment action the employer chooses to address the complaint is fraught with challenges of its own, e.g., an employer who transfers a complaining employee to another department to get that employee away from an alleged harasser may, as a result of the transfer, be seen as retaliating against the employee for making the complaint. This is particularly a concern if the transfer is seen objectively or subjectively as effectively punishing the complaining employee by, e.g., giving them a less-desirable job, longer hours, or a more difficult commute than what they experienced prior to making the complaint.
During an investigation, the complaining employee, the coworkers or supervisors alleged to have perpetrated the harassment, discrimination, or retaliation, and any known witnesses, should be interviewed as soon as possible. During these interviews, all employees should be assured that they will not be retaliated against for participating in the interview.
Some employees will likely be concerned about their privacy during an investigation. The fact of the interviews should be kept as confidential as possible. While it is difficult to provide total confidentiality and conduct a thorough investigation, the employer should only disclose sensitive information on a need-to-know basis.
A poorly-conducted investigation that results in “common knowledge” developing around the water cooler that a certain employee made a complaint can result in greater liability to the employer. Oftentimes, this “public outing” of the investigation can be seen as or portrayed as an attempt to embarrass the complaining employee, and therefore be construed as retaliation for the employee having made the complaint in the first instance.
The investigation stage of a complaint is vitally important because not only will it potentially diffuse the circumstances leading to the complaint, but it may address the employee’s complaint to the employee’s satisfaction. If the employee is not satisfied with the outcome of an investigation, however, and the employer ends up in litigation, the fact that a fair and thorough investigation was undertaken by the employer will be evidence that the employer acted reasonably, fairly, and appropriately in response to a complaint. Too harsh or rash a reaction to a complaint without an appropriate investigation to back up that action could leave the employer looking to a jury or judge like it did not take its obligations under California law seriously.
Sometimes an employer may become aware of unlawful conduct, but the affected employee may not want to file a formal complaint. Even when the employee doesn’t want to complain about the behavior, the employer may still have an obligation to investigate. Therefore, supervisors should be trained to take any complaint seriously, regardless of whether it is made offhand, informally, or even from a source other than the affected employee.
Once all parties have been interviewed and the investigation finalized, conclusions must be drawn. Employers should consider having an individual other than the individual who carried out the fact-finding participate at this stage to maintain objectivity. This individual will be tasked with determining whether harassment actually occurred.
When it has been determined whether and to what extent the harassment, discrimination, or retaliation did, in fact, occur, the employer should take reasonable and appropriate remedial action. What action is appropriate isvery fact specific. There is no “one-size-fits-all” approach for an employer to apply in determining what conclusions to draw and what action to take after an investigation. This is why it is almost a necessity for an employer to consult with counsel before taking any corrective or punitive steps the employer deems necessary following investigation of an employment claim.
The response or punishment following an investigation should be proportionate—reflect the severity and persistence—to the level of the harassment, to the extent possible. There are a range of possible punishments, including oral warning, written reprimand, counseling, removal of managerial duties or authority, suspension, and termination. The corrective action should be designed to stop the unlawful behavior and ensure that it does not occur again. Sometimes written or verbal counseling may be sufficient. In other instances, particularly if the unlawful harassment, discrimination, or retaliation is severe or reoccurring, termination may be the only appropriate remedy.
While punishment is determined on a case-by-case basis, employers should keep in mind their obligation to treat similar incidents in a similar manner. Thus, for example, if an employee is terminated after repeatedly making racial slurs to a coworker, another employee who later makes repeated racial slurs to a coworker may also need to be terminated so that the employer is not seen as applying its policies inconsistently with regard to unlawful behavior.
It is generally in the employers’ best interest to document the investigation process. This includes noting when the employee first made the complaint, whom the interviewer spoke with and what these individuals said, and what action the employer took and why. But again, there may be circumstances where it is inappropriate to document the investigation process, or the level of documentation generated may vary depending on the circumstances of a given complaint. While there is no one liability-proof response employers can take, courts have made it clear that a prompt response is one of the most important things that an employer can do once employers learn of unlawful harassment, discrimination, or retaliation.