Finding the Facts - Disciplinary and Harassment Investigation

A LL A BOUT THE A UTHORS

With offices in Los Angeles, Fresno, San Francisco, San Diego and Sacramento, the law firm of Liebert Cassidy Whitmore represents a variety of educational institutions in all aspects of employment law, labor relations and education law, as well as providing advice and representation in business and facility matters, both transactional and litigation. The Firm's representation of community college districts, as well as school districts, throughout California, encompasses all phases of counseling and representational services in negotiations, arbitrations, fact findings, and administrative proceedings, including representing our education clients before federal and state agencies with jurisdiction over public entities, including the U.S. Department of Education’s Office of Civil Rights , the California Department of Fair Employment and Housing, Equal Employment Opportunity Commission, Public Employment Relations Board, Fair Employment and Housing Commission, Department of Labor and the Office for Civil Rights and the State Office of Administrative Hearings. In addition, the Firm handles bidding questions, contract review and revision as well as other contracting issues. The Firm regularly handles a wide variety of labor and employment litigation and litigation regarding business and facilities issues, from the inception of complaints through trial and appeal, in state and federal courts Members of the Firm have first-hand experience and in-depth understanding of the special demands of labor relations and employment law as they apply to educational institutions. We are known throughout the state for the breadth and depth of our expertise in representing California schools, as well as, county offices of education and community college districts. Liebert Cassidy Whitmore places a unique emphasis on preventive measures to ensure compliance with the law and to avoid costly litigation. For more than 30 years, the Firm has successfully developed and presented training workshops and speeches on all aspects of employment relations for numerous public agencies and state and federal public sector coalitions, including the Community College League of California (CCLC), Association of Chief Human Resource Officers (ACHRO), Association of California Community College Administrators (ACCCA), College and University Professional Association for Human Resources (CUPA-HR), California College and University Police Chiefs Association (CCUPCA), Community College Facility Coalition (CCFC), National Association of College and University Administrators (NACUA), the Association of California School Administrators (ACSA), the California School Boards Association (CSBA), National Higher Education Law and Policy Institute, Education Law Association, International Personnel Management Association (IPMA), National Employment Law Institute (NELI), and Public Agency Risk Management Authority (PARMA) This workbook contains generalized legal information as it existed at the time the workbook was prepared. Changes in the law occur on an on going basis. For these reasons, the legal information cited in this workbook should not be acted upon in any particular situation without professional advice. Copyright © 2019 Liebert Cassidy Whitmore. All rights reserved. No part of this publication may be reproduced, stored, transmitted, or disseminated in any form or by any means without prior written permission from Liebert Cassidy Whitmore.

T ABLE OF C ONTENTS

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S ECTION 1 Introduction ...................................................................................................................................................................8

S ECTION 2 When Should an Investigation Be Conducted? .............................................................................................................8 A. When There is a Possible Violation of a Standard of Conduct .......................................................................8 B. When There is Alleged or Suspected Discrimination OR Harassment ...........................................................9 1. Practice Pointers to Recognize the Triggering Duty to Investigate........................................................10 2. What if the Complainant Does Not Want an Investigation? ..................................................................10 3. When Should the Investigation Begin? ..................................................................................................11 C. Before the Investigation Begins ....................................................................................................................12 1. Follow the District’s Investigation Procedure ........................................................................................12 2. Document the Complaint .......................................................................................................................16 3. Review the Allegations: What Type of Discrimination or Harassment?...............................................17 S ECTION 4 Who Should Be Assigned to Conduct the Administrative Investigation? ...................................................................20 A. Selecting the Right Person for the Job ..........................................................................................................20 1. Credibility, Rank and Experience ..........................................................................................................21 2. Personality, Demeanor and Character ....................................................................................................22 3. Impartiality.............................................................................................................................................22 4. Harassment Investigations: Accountability, Continuity and Experience ...............................................23 5. Report-Writing Ability...........................................................................................................................23 B. When to Use an Outside Investigator ............................................................................................................23 C. Investigator Determines the Facts .................................................................................................................23 D. Using an Attorney to Conduct an Investigation ............................................................................................24 E. Using an Attorney to Direct a Third Party Investigation...............................................................................25 F. Must an Outside Investigator Be a Licensed Private Investigator? ...............................................................25 S ECTION 5 Beginning the Investigation .........................................................................................................................................26 A. Preliminary Issues to Consider Prior to Starting the Investigation................................................................26 B. When Do You Advise the Employee That He/She is the Subject of the Investigation? ...............................28 C. What if the Subject Matter of the Investigation Relates to Criminal as Well as Administrative Misconduct? .........................................................................................................................28 D. Have a Good General Knowledge of District Policy Regarding the Conduct Alleged .................................31 S ECTION 6 Gathering the Facts......................................................................................................................................................32 A. Create a Binder..............................................................................................................................................33 B. Background Documents ................................................................................................................................34 1. Personnel Files .......................................................................................................................................34 2. Prior Complaints ....................................................................................................................................34 C. Documentary and Physical Evidence ............................................................................................................35 D. Interviews ......................................................................................................................................................35 1. Goals of the Interviews ..........................................................................................................................35 2. Preparation for the Interviews ................................................................................................................36 3. Interview Protocol..................................................................................................................................43 S ECTION 3 What Standard Does an Investigation Have to Meet? .................................................................................................19

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4. Interview Strategies................................................................................................................................54 5. Conclusion .............................................................................................................................................57 E. Administrative Searches................................................................................................................................58 1. Balancing Employee Privacy Interests...................................................................................................58 2. Guidelines for Conducting Workplace Searches:...................................................................................62 3. Searching an Employee’s Person or Personal Possessions ....................................................................62 4. Employee Monitoring ............................................................................................................................63 F. Polygraphs.....................................................................................................................................................67 G. Access to and Use of Criminal Records ........................................................................................................67 1. Arrest Records........................................................................................................................................67 2. Employment Decisions Based upon Criminal Records..........................................................................68 H. Concluding the Investigation.........................................................................................................................68 S ECTION 7 Evaluating the Facts.....................................................................................................................................................69 A. Review Your Investigation Binder ................................................................................................................69 B. Make Factual Findings ..................................................................................................................................69 1. Basic Factual Findings ...........................................................................................................................69 2. Burden of Proof......................................................................................................................................69 3. Credibility Determinations ........................................................................................................................70 C. Make Conclusions of Policy only– If Directed to Do So ..............................................................................72 S ECTION 8 Writing the Report .......................................................................................................................................................73 A. Contents of the Report...................................................................................................................................73 B. Attachments to the Report .............................................................................................................................73 C. Confidentiality of Investigation Report: How Much Can or Should Be Disclosed to the Complainant or the Accused?..................................................................................................................74 1. How Much Do You Tell the Complainant? ...........................................................................................74 2. How Much to Tell the Accused..............................................................................................................75 3. Discoverability of the Report .................................................................................................................77 S ECTION 9 Taking Corrective Action ............................................................................................................................................78 A. Prompt and Effective Remedial Action.........................................................................................................78 B. Type of Corrective Action.............................................................................................................................79

A PPENDIX A Sample Notice of Investigation to Witness/Employee .........................................................................................83

A PPENDIX B Sample Notice of Interview to Accused (Non-Sworn) .........................................................................................84

A PPENDIX C Sample Notice of Investigation to Accused (Sworn)............................................................................................85

A PPENDIX D Interrogation Admonition for Use in Sworn Police Interview..............................................................................87

A PPENDIX E Sample Statement and Questions for Use at the Beginning of the Investigative Interview..................................89

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A PPENDIX F Sample Statement in the Event Employee Refuses to Respond to Questions or Submit to Investigative Interview .........................................................................................................................................90

A PPENDIX G Legal Opinion 16-03.............................................................................................................................................91

A PPENDIX H Sample Notice of Completion of Investigation to Employee Complainant........................................................105

A PPENDIX I Sample Outline of Written Report......................................................................................................................107

A PPENDIX J Sample Policy and Complaint Procedure Against Harassment, Discrimination, and Retaliation ......................108

A PPENDIX K Legal Standard for Harassment ..........................................................................................................................114

A PPENDIX L Principles Limiting Damages in Harassment Cases ...........................................................................................127

A PPENDIX M EEOC Policy Guidance on Current Issues of Sexual Harassment (June 1999)..................................................137

A PPENDIX N California Department Of Fair Employment And Housing Workplace Harassment Guide For California Employers (2017) .......................................................................................................................160

A PPENDIX O Regulations Regarding Transgender Identity and Expression ............................................................................170

E NDNOTES ...............................................................................................................................................................171

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I NTRODUCTION

Section 1

This workbook is directed to supervisors and mid and upper level managers who are responsible for investigating or arranging for an investigation into reported allegations or evidence of employee misconduct, including harassment. The purpose of an investigation is to gather all of the facts needed to make a determination as to what occurred or did not occur. This workbook is designed to provide a step-by-step guide for conducting an administrative investigation, including practice points specific to investigating complaints in K-12 and community college districts. First, in applying the principles discussed in this workbook, both K-12 and community college districts must be mindful of any internal policies, regulations, and/or contract language that may affect the handling of employee complaints. Second, Title 5 of the California Code of Regulations impose specific timelines and procedures on both K-12 and community college districts with regard to certain employee complaints. 1 Finally, investigators in educational settings are often called upon to interview students. These interviews raise particular challenges such as heightened fears of retaliation, eliciting credible information, and student safety. 2 Liebert Cassidy Whitmore cautions that this information should not be viewed as a substitute for early evaluation whenever a complaint is received, and cannot replace the critically important assistance of legal counsel.

W HEN S HOULD AN I NVESTIGATION B E C ONDUCTED ?

Section 2

A. W HEN T HERE IS A P OSSIBLE V IOLATION OF A S TANDARD OF C ONDUCT Certificated, academic and classified staff may be disciplined only for cause. Both to ensure that discipline is warranted, and to provide documentary support for the decision to discipline, districts should conduct administrative investigations into alleged misconduct when there is reasonable suspicion to believe an employee has violated a rule or regulation. The grounds for certificated and academic discipline are statutory, and include those stated in Education Code sections 44932 and 87732. Grounds for classified discipline may be found in administrative regulations, and/or collective bargaining agreements (CBAs). Below are common grounds for classified discipline:

Any permanent or probationary employee may be dismissed, demoted, or suspended for the following causes:

a) Immoral conduct.

b) Unprofessional conduct.

c) Dishonesty.

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d) Incompetency.

e) Addiction to the use of controlled substances.

f) Failure or refusal to perform the normal and reasonable duties of the position.

g) Conviction of a felony or conviction of any misdemeanor involving moral turpitude.

h) Fraud in securing appointment.

i) Drunkenness on duty.

j) Violence or threats of violence in the workplace.

In addition, the source of the allegations of misconduct should be considered. For example, an anonymous letter claiming that an employee had parked a district 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 finance 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 district investigate and take prompt corrective action if warranted. Failure to conduct a prompt, fair, and thorough investigation in such cases could subject your district to liability under both federal and state law. Further, if allegations of harassment or discrimination are presented to a district in a formal complaint, Title 5 regulations require that an investigation be conducted within prescribed time lines (discussed in section 2.C below).

Be aware of any deadlines for completing the investigation and responding to the complainant. Investigators should review any applicable district policies, regulations, or Title 5 sections. 3

LCW Practice Advisor

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 4 imposes an affirmative obligation on employers to take all reasonable steps necessary to prevent discrimination and harassment from occurring in the workplace. 5 To satisfy this obligation, employers must investigate complaints of discrimination or harassment. The Equal Employment Opportunity Commission 6 has also imposed a duty upon employers to investigate complaints of harassment. 7 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). 8

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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. 9 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. 10 An employer should take every complaint seriously. Anytime a complaint of discrimination or harassment is received, either formally or informally, the district must conduct an investigation. 11 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. 1. P RACTICE P OINTERS TO R ECOGNIZE THE T RIGGERING D UTY TO I NVESTIGATE Do not wait for a formal complaint. If you know of possible harassment, or think you may know of possible discrimination or harassment because of rumors or what you see or hear, report it to human resources or as otherwise appropriate in your district so it is promptly investigated. In Van Zant v. KLM Royal Dutch Airlines , 12 the court held that a supervisor’s knowledge of improper conduct may be directly imputed to the employer, and thus trigger the duty to investigate, if the supervisor is placed on notice of the improper conduct and maintains a sufficiently high level in the employer’s hierarchy. Similarly, in Varner v. National Super Markets, Inc. , 13 the court held that an employer’s notice of improper conduct, even though the employee failed to follow the employer’s procedures for reporting misconduct, triggered the employer’s duty to investigate. 2. W HAT IF THE C OMPLAINANT D OES N OT W ANT AN I NVESTIGATION ? Sometimes, complaining parties who report an incident of discrimination or harassment request that the employer do nothing. However, honoring such a request could place other employees at risk for discrimination or harassment. Also, “doing nothing” or failing to investigate could place the public district at risk for liability for failure to investigate and failure to take prompt remedial action. Once on notice of an alleged occurrence of discrimination or harassment, the employer must investigate, despite the complainant’s request to “do nothing” or not to investigate. The employer should therefore advise the complainant that it will investigate the complaint, but it

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should also elicit and address any specific concerns that the complainant has regarding an investigation.

The investigation should proceed even when the alleged victim or other complainant does not request or consent to an investigation.

LCW Practice Advisor

3. W HEN S HOULD THE I NVESTIGATION B EGIN ? The investigation should start within a few days of the receipt of the complaint (if one is filed) or when the employer otherwise becomes aware of possible discrimination, harassment or other alleged misconduct. If an investigation is delayed, memories fade, evidence may disappear, and the employer may be accused of failing to take prompt and effective remedial action. The following cases illustrate this principal:

Cases on Point:

Waymire v. Harris County 14 An employer prevailed in a harassment case in which (1) the supervisor began the investigation on the day the plaintiff complained, (2) the supervisor interviewed the plaintiff, accused harasser and several witnesses within one week, and (3) the employer prepared a report regarding the investigation, forwarded it to management personnel, and reprimanded the “harasser.” Werger v. City of Ladue 15 An employer prevailed in a harassment case where (1) numerous co-workers witnessed some of the objectionable conduct, (2) the Department Head immediately separated the accused from the accusers, ending the harassing behavior, and (3) the department head conducted an immediate and thorough investigation. Carmon v. Lubritzol Corp. 16 An employer prevailed in a harassment case in which several supervisors and the personnel manager (1) met with the plaintiff the day she complained to tell her they appreciated her bringing the incident to their attention and to reiterate the policy against harassment, (2) completed the investigation within three days, and (3) reprimanded and transferred the alleged harasser, even though there were no corroborating witnesses. Steiner v. Showboard Operating Co. 17 An employee prevailed where the employer failed to promptly investigate a claim of harassment after (1) the plaintiff complained of sexual harassment, (2) the employer did not initially investigate the claim, (3) the employee filed a charge with the EEOC, and (4) the employer investigated the complaint.

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Valentín v. Municipality of Aguidilla 18 And a jury found in favor of an employee in a harassment case where the district did not conduct an investigation after (1) the employee complained to the designated complaint-receiver, lieutenant in charge of internal affairs investigations, the Police Commissioner, and the Mayor, (2) the accused and his friends admonished and disciplined the employee, and (3) the employee took 2 leaves of absence due to stress from the harassment. Dept. of Fair Employment & Housing v. Lyddan Law Group 19 DFEH may prosecute an action for failing to take all reasonable steps to prevent harassment as an independent violation even where there is no legally actionable claim of harassment.

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. 20

C. B EFORE THE I NVESTIGATION B EGINS

1. F OLLOW THE D ISTRICT ’ 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. Districts must have a policy and that policy must include a complaint and investigation process. 21 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.

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 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”).  Supervisors report any complaints of misconduct to a designated employer representative, such as a human resources manager, so the employer can try to resolve the claim internally.  Employees are not exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation. 22 If your district does not have an established complaint and investigation procedure, we strongly recommend establishing one. The absence of such a procedure violates Title 5 and may result in incomplete investigations and inconsistencies in the way the employer handles harassment complaints. It might also call into question the district’s commitment to eliminate harassment. Indeed, as noted above, state regulations require both K-12 and community college districts to implement formal investigation procedures. 23 Title 5 of the California Code of Regulations requires that districts investigate and attempt to resolve complaints alleging violation of state and federal anti-discrimination laws. 24 It sets forth the specific procedures districts must follow when handling discrimination complaints filed by students and employees. 25 Title 5 also mandates that districts implement formal complaint procedures. 26 But while Title 5 provides guidance regarding the investigation process districts must follow in terms of deadlines and notifications, it does not establish the specific investigation procedures to be used. Instead, that is left to the district. 27 Title 5 requires that each district designate one person as the district officer responsible for receiving complaints and coordinating their investigation. But depending on the circumstances, that district officer can assign the actual investigation of the complaint to other staff or retain an outside investigator. 28 Districts should consider retaining an outside investigator if the complaint names or implicates a high ranking employee or if it involves particularly sensitive issues. Once the district officer assigns the complaint for investigation, the district should provide the investigator with relevant documents and information, as well as access to potential witnesses. On May 2, 2017, the DFEH issued its Workplace Harassment Guide for California Employers. (See Appendix N). The Guide provides comprehensive instruction to employers on how to investigate reports of workplace harassment. Although the Guide is focused on workplace harassment, and should be used for discrimination and retaliation claims as well, it is an

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excellent resource that should be consulted in conducting any type of investigation concerning employees.

a. School Districts On certain occasions, school districts are required to provide information relating to the results of an investigation and any corrective action that will be undertaken. The employer should review any applicable complaint procedures, board policies and administrative regulations. School districts should be aware that the Title 5 Uniform Complaint Procedure requires them to provide the complainant with a copy of the district’s “Decision.” The Decision must be provided no later than sixty (60) days after the complaint is filed and should contain the following:

 The findings of fact based on the evidence gathered,



Conclusion of law,



Disposition of the complaint,



The rationale for such disposition,

 Corrective actions, if any are warranted,

 Notice of the complainant’s right to appeal the Decision the State Department of Education, and  Procedures to be followed for initiating an appeal to the State Department of Education. 29 b. Community College Districts Title 5 of the California Code of Regulations requires that districts investigate and attempt to resolve complaints alleging violation of state and federal anti-discrimination laws. 30 It sets forth the specific procedures districts must follow when handling discrimination complaints filed by students and employees. 31 Title 5 also mandates that districts implement formal complaint procedures. 32 But while Title 5 provides guidance regarding the investigation process districts must follow in terms of deadlines and notifications, it does not establish the specific investigation procedures to be used. Instead, that is left to the district. 33 For complainants who choose to utilize the complaint processes established by Title 5, then Title 5 procedures govern. Complaints alleging a violation of Title 5 must be filed with either the Chancellor of the Community Colleges or the district official designated to receive such complaints. Employment-based complaints must be filed within 180 days of the date of the alleged unlawful act. 34 LCW recommends that complaints filed after 180 days should still be fully investigated although the procedures will not be governed by Title 5. Within 90 days of placing an academic employee on involuntary paid administrative leave, the employer should complete its investigation of the accused misconduct and initiate disciplinary proceedings against, or reinstate, the employee. 35

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In contrast, nonemployment-based complaints may be filed within one year of the date of the alleged unlawful act or within one year of the date on which the complainant knew or should have known of the facts underlying the allegation of unlawful discrimination. 36 Upon receipt of either an employment-based or a nonemployment-based complaint, the district must forward a copy of the complaint to the State Chancellor’s office. 37 For employment discrimination complaints, a district must advise the complainant that he or she may file the complaint with the U.S. Equal Employment Opportunity Commission (EEOC) and/or the Department of Fair Employment and Housing (DFEH) and forward a copy of any filing by the complainant with the EEOC or DFEH to the Chancellor’s Office for a determination of whether the issues presented require an independent investigation. 38 Within 90 days of receiving a nonemployment based complaint, the district is required to complete its investigation and forward a copy of the investigative report to the Chancellor, a copy or summary of the report to the complainant and written notice setting forth all of the following to both the Chancellor and complainant:  The determination of the chief executive officer or his or her designee as to whether there is probable cause to believe discrimination occurred with respect to each allegation in the complaint;  A description of actions taken, if any, to prevent similar problems from occurring in the future; The same requirements apply to employment based complaints except for providing the report to the Chancellor. 40 Also, the complainant must be advised of his or her right to appeal to the district governing board and to file a complaint with DFEH. 41 If the district, for reasons beyond its control is unable to comply with the 90-day deadline, the district may request that the Chancellor grant an extension. 42 The request for extension must be submitted no later than ten days prior to the expiration of the deadline. 43 The California Community Colleges Chancellor’s Office (CCCO) issued a Legal Advisory on September 2, 2011 regarding the discrimination complaint procedures under Title 5. The Office for Civil Rights of the U.S. Department of Education (OCR) brought to CCCO’s attention several areas where there may be some confusion regarding how best to comply with both state and federal regulations when responding to unlawful discrimination complaints. The advisory addresses these issues and identifies some areas of misunderstanding regarding the respondent’s (subject of a complaint or accused) rights within the Title 5 process. 44 Specifically, the respondent is entitled to the opportunity to address the complaint that has been filed, but those rights and entitlements are not covered by Title 5. Four examples are listed below with “best practices” recommendations in parentheses:  The proposed resolution of the complaint; and  The complainant’s right to appeal to the district governing board and the State Chancellor. 39

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(1) Under Title 5, a respondent is not entitled to a copy of the complaint itself (information contained in the complaint should be provided to the respondent as necessary to provide sufficient notice of and fully investigate the allegation(s)); Title 5 does not require that the respondent be advised about the outcome of the investigation and the basis for the complaint determination (OCR has advised that providing this information is permissible); After the administrative determination is made, respondents are not entitled to add any additional information for local board to review (If a respondent wishes to file a written response, he or she may do so during the initial investigation and this information can be part of the investigation report.); and On May 16, 2016, the CCCO issued Legal Opinion 16-03 with respect to Student and Employment Discrimination Complaint and Procedures. (See Appendix G). We provide Legal Opinion 16-03 because it provides a good overview of the State Chancellor’s expectations with regard to investigating formal harassment and discrimination complaints. The Opinion largely tracks your obligations under Title 5, section 59300 et seq. However, we flag that pursuant to the regulations, the Administrative Determination that you are required to provide to complainants must include either the investigation report or a summary of the investigation. The Legal Opinion states that districts “should” attach the investigation report. As Chancellor’s opinions are not legally controlling, we read this “should” as permissive. Districts may provide only a summary of the report. 2. D OCUMENT THE C OMPLAINT If the investigation is triggered by a complaint, it should be thoroughly documented. A complaint can either be made verbally or in writing. When a complaint is made verbally, a written summary of the allegations should be made immediately and signed by the complainant, or the complainant should be asked to place his/her complaint in writing. If the complainant refuses to sign a written statement of the allegations or to submit a written complaint, a written record of the complaint should still be made with a notation of the complainant’s reluctance to place his/her complaint in writing. Having a written record of the complaint will provide accuracy and clarity of the charges being investigated and will guide the investigator in conducting the investigation. The investigator should make sure he/she fully understands the allegations and issues presented by the complainant, as well as the relevant policies. An effective tool is for the investigator to write down his/her initial analysis of the complaint. (2) (3) (4) Under Title 5, respondents do not have the right to appeal an administrative determination.

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3. R EVIEW THE A LLEGATIONS : W HAT T YPE OF D ISCRIMINATION OR H ARASSMENT ? Investigations are better focused and elicit more relevant information if the nature of the complaint is well understood. After a complaint of discrimination or harassment has been received and documented, the allegations must be reviewed to determine what type of discrimination or harassment is alleged in the complaint. Unlawful harassment includes both hostile work environment and quid pro quo sexual harassment. Keep in mind that harassing conduct may violate an district’s policy even though it would not constitute unlawful harassment. a. Hostile Work Environment For hostile work environment harassment to be unlawful, the conduct must be based on the alleged victim’s protected status or the perception of a protected status, such as his/her:



Race



National Origin or Ancestry

 Sex (including gender and pregnancy)



Age (40 years and older)

 Physical or Mental Disability, or Medical Condition



Religion



Marital Status



Sexual Orientation



Gender identity and expression



Genetic information

 Opposition to Unlawful Harassment (i.e., retaliation)

Harassment based on sex includes harassment of a sexual nature, gender harassment, and harassment based on pregnancy, childbirth, or medical conditions related to pregnancy or childbirth. 45 Whether motivated by hostility or by sexual interest, harassing conduct of a sexual nature, is always based on sex, regardless of the gender of the alleged victim or the sexual orientation of the harasser. Thus, same sex harassment and harassment by a homosexual employee of an employee of the opposite sex are also unlawful. 46 Further, in evaluating the severity and pervasiveness of sexual harassment, courts may focus on the perspective of the victim. 47

A work environment is hostile if:

 The conduct is so offensive that it interferes with an employee’s work performance. Effective January 1, 2019, a plaintiff no longer needs to prove his or her “tangible productivity” declined as a result of harassment; a plaintiff simply needs to show a “reasonable person” would find the harassment made it more difficult to work. 48

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 The conduct is so severe or pervasive that it creates an objectively hostile or abusive work environment. Effective January 1, 2019, this standard no longer applies and a single incident of harassing conduct will be sufficient to create a triable issue of fact regarding the existence of a hostile work environment. 49 And

 The alleged victim subjectively perceives the environment to be abusive. 50

Most districts have policies that prohibit harassing conduct that does not rise to the level of unlawful harassment. Therefore, the investigation must determine whether there was a violation of district policy.

Cases on Point:

Herberg v. California Institute of Arts 51 An employee claimed she was subjected to a hostile work environment based on a piece of art displayed on the employer’s premises depicting the employee engaged in a sexual act. The piece of art was displayed for a 24-hour period. The court rejected the claim and held that liability for sexual harassment may not be imposed based on a single incident that does not involve outrageous conduct, such as an assault. 52 Fuller v. City of Oakland 53 An employee prevailed on a claim of sexual harassment against a co-employee and the employer. The employee and co-employee mutually dated for a few months. After the employee called off the relationship, the co-employee (1) threatened to kill himself, (2) forced the employee to drive off the road, (3) forcibly obtained the employee’s unlisted phone numbers, and (4) left several unsolicited telephone messages for the employee. 54 Jacobus v. Krambo Corp. 55 However, an employee did not prevail on a claim of sexual harassment against a co-employee based on mutual sexual banter. The employee and co-employee frequently engaged in sexual conversations, socialized outside of the workplace, and joked about going to a strip club together. The co-employee also shared sexually explicit materials with the employee at the employee’s request. 56

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 districts’ 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. 57 However, a filing of a fabricated complaint is not protected and an employee can be disciplined for filing a false harassment complaint. 58

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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. 59 c. Violation of District’s Anti-Harassment Policy A district’s policy may be violated even if the conduct complained of does not constitute “unlawful” harassment. Many districts 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 district’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. 60 It can include sexual propositions, unwarranted graphic discussions of sexual acts, or commentary on an employee’s body. 61 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. The FEHA Workplace Harassment Prevention Guide (Guide) provides critical guidelines on the entire investigative process (See Appendix N). 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) Section 3

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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. Please refer to Appendix N, which contains an URL link of the Guide.

W HO S HOULD B E A SSIGNED TO C ONDUCT THE A DMINISTRATIVE I NVESTIGATION ?

Section 4

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 district choose an appropriate individual who is capable of conducting a PROMPT, FAIR and THOROUGH investigation. Sample written reports can be found in the appendices at the end of this workbook.

Case Study

Jameson v. Pacific Gas and Electric Company 62 Pacific Gas and Electric Company terminated Steve Jameson after an investigation by the company concluded that Jameson had retaliated against another employee for raising a safety issue about Jameson. Jameson argued his termination was improper because the investigation was procedurally flawed and the investigator reached incorrect conclusions. The California Court of Appeal held that the standard of review is not whether the investigation could have been done differently, more comprehensive, or whether the investigator’s conclusions were correct. The courts will not compel employers to undertake a precise type of investigation; instead the investigation must be “inherently fair.”

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