Disciplinary and Harassment Investigations

b. Retaliation Retaliation against a person who brings a good faith complaint of discrimination or harassment or participates in an investigation of discrimination or harassment, is unlawful and violates most agencies’ policies. Even if discrimination or harassment is not found to have occurred, if the complaint was made in good faith, the employee may not be retaliated against for making the complaint. 33 However, a filing of a fabricated complaint is not protected and an employee can be disciplined for filing a false harassment complaint. 34

An employer always runs the risk of a retaliation claim whenever the employer disciplines an employee for making a false discrimination or harassment complaint because the discipline follows the protected activity of complaining. Employers are best advised to pursue discipline only when there is unequivocal evidence that the complaint was false.

LCW Practice Advisor

While a single severe adverse employment action such as termination or demotion will suffice to demonstrate retaliation, so too can a series of actions—including unwarranted criticism, unwarranted negative performance evaluations and solicitation of negative feedback from subordinates—which viewed together amount to an adverse employment action. 35 c. Violation of Agency’s Anti-Harassment Policy An agency’s policy may be violated even if the conduct complained of does not constitute “unlawful” harassment. Many agencies have policies that prohibit conduct that does not rise to the level unlawful harassment. In that case, the focus of the investigation is whether the agency’s policy was violated – not whether the law was violated. d. Quid Pro Quo Sexual Harassment Quid pro quo harassment occurs when submission to sexual conduct is explicitly or implicitly made a condition of a job, a job benefit, or the absence of a job detriment. 36 It can include sexual propositions, unwarranted graphic discussions of sexual acts, or commentary on an employee’s body. 37 W HAT S TANDARD D OES AN I NVESTIGATION H AVE TO M EET ? As discussed above, the Fair Employment and Housing Act (FEHA) regulations were amended in 2016 requiring employers to create detailed written policies for preventing harassment, discrimination and retaliation. At its core, an investigation must be fair, thorough and timely initiated and completed. Section 3

Disciplinary and Harassment Investigations ©2020 (s) Liebert Cassidy Whitmore 14