Disciplinary and Harassment Investigations

The FEHA Workplace Harassment Prevention Guide (Guide) provides critical guidelines on the entire investigative process. Although guidelines do not pose legal requirements, they reflect best practices and a “gold star” standard. In evaluating an investigation and whether it complies with the 2016 FEHA regulations the DFEH will test it against the standards in the Guide and Courts are likely to also consider these guidelines in evaluating investigations. Accordingly, guidelines should be closely adhered to and are addressed throughout this workbook. Specifically, the Guide addresses (1) responding to a complaint of harassment; (2) the basic steps for a fair investigation; (3) confidentiality issues related to the investigation; (4) how quickly to begin and finish an investigation; (5) recommended practices for conducting an investigation; (6) investigator qualifications and training; (7) type of witness questioning (8) making credibility determinations; (9) burden of proof required in making findings; (10) making factual and not legal conclusions; (11) documentation of investigations; and (12) special issues, i.e. when the target of harassment asks the employer not to do anything or when investigating an anonymous complaint.

W HO S HOULD B E A SSIGNED TO C ONDUCT THE

Section 4

A DMINISTRATIVE I NVESTIGATION ?

A. S ELECTING THE R IGHT P ERSON FOR THE J OB

Before an investigation can begin, an investigator must be selected. The investigator is responsible for:

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Conducting the investigation

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Evaluating the facts

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Rendering factual findings

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Writing a report

Conducting an investigation is a major responsibility. In discipline cases, employees may challenge the fairness or accuracy of the investigation, making the investigation itself subject to scrutiny in a hearing or judicial proceeding. If litigation ensues as a result of alleged discrimination or harassment, the plaintiff may be able to gain access to the investigation: the written report and the investigator’s binder, including the investigator’s notes, may be discoverable. It is therefore crucial that the agency choose an appropriate individual who is capable of conducting a PROMPT, FAIR and THOROUGH investigation.

Disciplinary and Harassment Investigations ©2020 (s) Liebert Cassidy Whitmore 15