An Administrator's Guide to California Private School Law

Chapter 12 - Investigations

C. D EPARTMENT OF F AIR E MPLOYMENT AND H OUSING W ORKPLACE H ARASSMENT G UIDE FOR C ALIFORNIA E MPLOYERS On May 2, 2017, the DFEH issued its Workplace Harassment Guide for California Employers. The Guide instructs employers on how to investigate reports of workplace harassment. It is, however, an excellent resource that we recommend be consulted by schools conducting any type of investigation concerning employees or students. 1925 The Guide provides critical guidelines on the entire investigative process. Although guidelines do not pose legal requirements per se, they reflect best practices and a “gold star” standard. Court’s will almost certainly consider the guidelines as a benchmark in evaluating an investigation and whether it complies with the 2016 FEHA regulations. Accordingly, guidelines should be closely adhered to and are addressed throughout this chapter. Specifically, the Guide addresses (1) the appropriate response to a complaint of harassment; (2) the basic steps recommended for a fair investigation; (3) whether to keep information from the investigation confidential; (4) when to initiate and complete an investigation; (5) the recommended practices for conducting an investigation; (6) investigator qualifications and training; (7) how to question witnesses; (8) how to make credibility determinations; (9) the burden of proof required in making findings; (10) making factual and not legal conclusions; (11) proper documentation; and (12) handling special issues, e.g. when the target of harassment asks the employer not to do anything or when investigating an anonymous complaint. Please refer to Appendix N, with an URL link of the Guide. The DFEH guidelines and regulations are referenced throughout this chapter. 1. P RACTICE P OINTERS T O R ECOGNIZE T HE T RIGGERING D UTY T O I NVESTIGATE Pursuant to the California Fair Employment and Housing Act, an employer must take immediate and appropriate corrective action once the employer knows or should have known of possible discrimination, harassment, or retaliation. Accordingly, it is important not to wait for a formal complaint. If the school becomes aware of possible discrimination, harassment, or retaliation through any means, including a complaint, personal observation, reports from third parties, or otherwise, it should promptly investigate the situation. In Van Zant v. KLM Royal Dutch Airlines , 1926 the court held that a supervisor’s knowledge of improper conduct may be directly imputed to the employer, and therefore triggers the duty to investigate, if the supervisor is placed on notice of the improper conduct and maintains a sufficiently high level in the employer’s hierarchy. Similarly, in Varner v. National Super Markets, Inc. , 1927 the court held that an employer’s notice of improper conduct triggered the employer’s duty to investigate, even though the employee failed to follow the employer’s procedures for reporting misconduct.

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