Disciplinary and Harassment Investigations

Bottom line: To promote effective operations and avoid liability, investigate promptly.

A prompt investigation can assist in stopping discriminatory or harassing behavior, sends a message that the employer takes the complaint seriously, helps protect the preservation of evidence (including physical evidence such as emails and videos, and witnesses’ memories), and allows the employer to fairly address the issues in a manner that can minimize disruption to the workplace and individuals involved. 17

C. B EFORE THE I NVESTIGATION B EGINS

1. F OLLOW THE A GENCY ’ S I NVESTIGATION P ROCEDURE One of the requirements in meeting the obligation to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct is to have a discrimination and harassment policy. Agencies must have a policy and that policy must include a complaint and investigation process. 18 The courts, the EEOC, and the DFEH expect agencies to closely follow those procedures in responding to complaints of discrimination, harassment, and retaliation, including to abide by all the time lines. The Fair Employment and Housing Council adopted amended regulations, effective April 1, 2016, addressing certain components that must be included in an employer’s written internal complaint process. An employer’s written internal complaint process must provide that:  Employees’ complaints are designated confidential, to the extent possible, although the employer is not required to keep the investigation of the complaints completely confidential.

 Complaints are responded to and closed in a timely manner.

 Allegations of misconduct are investigated in a fair, timely, and thorough manner, that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected.

 Complaints are investigated by qualified personnel.

 Complaints are documented and tracked for reasonable progress.

 Complaints are responded to with appropriate options for remedial actions and resolutions if the investigation reveals that misconduct occurred.  Employees may complain, either orally or in writing, to someone other than their immediate supervisor, such as a human resources manager, EEO officer, or other supervisor; a complaint hotline; and/or the DFEH and the Equal Employment Opportunity Commission (“EEOC”).

Disciplinary and Harassment Investigations ©2020 (s) Liebert Cassidy Whitmore 10