Disciplinary and Harassment Investigations

In addition, the source of the allegations of misconduct should be considered. For example, an anonymous letter claiming that a public employee had parked an agency vehicle in a “No Parking” zone would not necessarily justify an investigation of such an allegation. (However, a brief conversation with the implicated employee might well be in order). On the other hand, an anonymous letter alleging that an employee of a city treasurer’s office has been seen removing money from a cash register and putting it in his pocket should prompt an investigation. If alleged misconduct involves harassment, discrimination, retaliation, or other illegal conduct including whistleblower retaliation, it is important that the agency investigate and take prompt corrective action if warranted. Failure to conduct a prompt, fair, and thorough investigation in such cases could subject your agency to liability under both federal and state law. B. W HEN T HERE IS A LLEGED OR S USPECTED D ISCRIMINATION OR H ARASSMENT In the case of harassment, the California Fair Employment and Housing Act 1 imposes an affirmative obligation on employers to take all reasonable steps necessary to prevent discrimination and harassment from occurring in the workplace. 2 To satisfy this obligation, employers must investigate complaints of discrimination or harassment. The Equal Employment Opportunity Commission 3 has also imposed a duty upon employers to investigate complaints of harassment. 4 In fact, case law establishes that once an employer knows, or should have known of possible harassment, failure to conduct any investigation at all may constitute an independent violation of federal law (Title VII). 5 The prevalence of harassment claims, and the employer’s corresponding duty to investigate, can be easily placed into perspective with statistics. In 2017, the EEOC received 84,254 complaints of discrimination and harassment. 6 Of these complaints, the EEOC prosecuted 201 claims in various courts of law and obtained approximately $42.4 million in monetary benefits for aggrieved employees. 7 An employer should take every complaint seriously. Anytime a complaint of discrimination or harassment is received, either formally or informally, the agency must conduct an investigation. 8 This is true even where the complaint appears to have no merit whatsoever. An investigation may also be triggered by the following:  When a person, other than the aggrieved person, complains about discrimination or harassment;  When someone indicates that inappropriate conduct is occurring, even if the word “discrimination” or “harassment” is not used;  When a supervisor personally observes inappropriate conduct or language, or has general knowledge of a potentially hostile work environment. In this situation, the supervisor must request that any inappropriate conduct cease and that an investigation be conducted.

Disciplinary and Harassment Investigations ©2020 (s) Liebert Cassidy Whitmore 7