Finding the Facts - Disciplinary and Harassment Investigation

entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.” While an employer has an obligation to timely investigate a potential victim’s harassment claims, nothing in the law creates an employer obligation to the alleged perpetrator of the harassment. Because Orlando’s complaints incorrectly assumed that the FEHA investigation obligations applied to him as a perpetrator of the threats of violence, the complaints were not cognizable under the FEHA.

Remedial action should not include moving the complainant to a less desirable work location to separate the complainant from the alleged harasser and hostile work environment. 170 Such action could be perceived as retaliation for complaining about harassment. The public employer should instead consider transferring or moving the alleged harasser. The employer could also consult with the complainant as to how to improve his or her working environment or where, if anywhere, he or she would like to be moved.

LCW Practice Advisor

Likewise, the corrective action should reflect the severity of the misconduct. Thus, discipline of the offending supervisor or employee may range from counseling or a reprimand, to suspension, with or without pay, to discharge. If the discipline does not end the harassment, the employer should initiate additional, more severe remedial action until the harassment stops. Depending upon the severity of the harassment, the person found to have harassed another employee may be terminated on the first complaint.

Whether the discipline is appropriate for the circumstances depends on the severity and persistence of the harassment and the effectiveness of any initial remedial steps. 171 Investigators should determine the factors that are relevant to assessing the seriousness of the offense and include those within the scope of their factual investigations. It is these factual findings that will assist the district in making well- informed decisions on the level of discipline.

LCW Practice Advisor

Repeatedly, case law reveals that when districts conduct prompt and thorough harassment investigations, they are much more successful in defending their appropriateness of their corrective steps (or decisions that corrective action was not warranted.) This point is well illustrated by the following case studies:

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