Finding the Facts - Disciplinary and Harassment Investigation

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. 61 It can include sexual propositions, unwarranted graphic discussions of sexual acts, or commentary on an employee’s body. 62 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. 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. Section 3

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