Finding the Facts - Disciplinary and Harassment Investigation

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 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.

Disciplinary and Harassment Investigations ©2020 (e) Liebert Cassidy Whitmore 8