Finding the Facts - Disciplinary and Harassment Investigation

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.

 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

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