Finding the Facts - Disciplinary and Harassment Investigation

A. P ROMPT AND E FFECTIVE R EMEDIAL A CTION Employers have an affirmative duty to “take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment under Title VII, and developing methods to sensitize all concerned.” 166 In addition, districts must take corrective action if the investigation findings reveal that harassment in violation of the district’s policy occurred. This remedial action must be:

 Reasonably calculated to end the harassment, and

 Deterring future harassment-by the same offender or others. 167

B. T YPE OF C ORRECTIVE A CTION

The type of corrective action taken depends on the following factors:



The seriousness of the offense;

 The district’s ability to stop the harassment;

 The likelihood that the remedy will end the harassment;

 The remedy’s ability to persuade potential harassers to refrain from unlawful conduct. 168

Case Study

Nakai v. Friendship House Association of American Indians, Inc. 169 The case involved claims by Orlando Nakai (Orlando), who was employed by Friendship House Association of American Indians, Inc. (Friendship House), a drug and alcohol rehabilitation program. Nakai’s wife, Karen Nakai (Karen), was also an employee of Friendship House. The program’s CEO, Helen Waukazoo (Helen) was Orlando’s mother-in-law. Karen and Orlando began having marital difficulties. In May 2016, Karen called Helen to inform her that Orlando was armed with a gun, was dangerous, had relapsed on drugs, and was angry with program employees. The next day, Helen put Orlando on paid administrative leave. Karen obtained a temporary restraining order (TRO) against Orlando and provided Helen with a copy. Helen then terminated Orlando’s employment based on the information that Karen provided to her. The appellate court affirmed summary judgment on the ground that Friendship House was not required, by the FEHA, to conduct an investigation of Orlando’s threats prior to terminating him. The FEHA creates an employer obligation to investigate claims of harassment made by a potential victim of harassment. FEHA provides that “[h]arassment of an employee . . . shall be unlawful if the

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