Disciplinary and Harassment Investigations

The investigator, therefore, should review the agency’s policy before he/she begins investigating the facts. A summary of the law prohibiting harassment and what elements need to be established to prove unlawful harassment are discussed below in Section 6, Evaluating the Facts. This is for general guidance and understanding only. As discussed below, investigators should not make determinations as to whether the law has been violated. Also an agency’s policy may be stricter than the law and prohibit conduct that would not rise to the level of a violation of federal and/or state law. Accordingly, workplace misconduct that violates an agency’s policy may not necessarily violate the laws prohibiting harassment.

G ATHERING THE F ACTS

Section 6

In this section:

A. Create a Binder

B. Background Documents

C. Documentary and Physical Evidence

While these are the general components to gather the facts, depending on the circumstances, there may be other fact gathering steps that should be taken. For example, in many investigations it is important to view the location where the alleged events took place, examine the physical layout, the visibility of certain areas, or other relevant physical aspects. The DFEH’s Workplace Harassment Guide provides basic steps for conducting a fair investigation. Though these technically only apply to employee harassment, discrimination and retaliation investigations, these basic steps are excellent guidance to meet the fairness standard for all employee related investigations. The DFEH steps are:  Conduct a thorough interview with the complaining party, preferably in person. Whenever possible, the investigation should start with this step.  Give the accused party a chance to tell his/her side of the story, preferably in person. The accused party is entitled to know the allegations being made against him/her, however it is good investigatory process to reveal the allegations during the interview rather than before the interview takes place. It may not be necessary to disclose the identity of the complaining party in some cases. Due process does not require showing the accused party a written complaint. Rather, it means making the allegations clear and getting a clear response.  Relevant witnesses should be interviewed and relevant documents should be reviewed. This does not mean an investigator must interview every witness or document suggested by the complainant or accused party. Rather, the investigator should exercise discretion but interview any witness whose information could impact

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