Question: A female employee recently told our office manager that she felt uncomfortable when her male supervisor complimented her on her dress after an office meeting. What should I do now? Do I have to hire an attorney to conduct an investigation?
Answer: In April 2016 California’s Fair Employment and Housing Council issued regulations to clarify that employers with five or more employees have an obligation to take reasonable steps to prevent and correct wrongful (harassing, discriminatory, retaliatory) behavior in the workplace. The regulations also address how to respond to complaints of alleged harassment, discrimination or retaliation in a timely manner, and ensure that such complaints receive a fair and thorough investigation by qualified personnel. The regulations require employers to provide all parties involved in the investigation with appropriate due process, and to reach reasonable conclusions based on the evidence collected. If at the end of the investigation misconduct is found, the regulations require the employer to take appropriate remedial measures.
In the wake of these new regulations, in May 2017 the Department of Fair Employment and Housing issued a Workplace Harassment Guide for California Employers. This guide clarifies that while employers must give all complaints of harassment top priority, not all complaints warrant a formal investigation. For example, where the complaint involves conduct that is not so serious, like an employee’s discomfort with an offhand compliment, the employer may be able to resolve the issue by talking to the parties involved and potentially counseling the accused if appropriate.
The guide notes that when a more formal investigation is warranted, employers may utilize one of their own employees to conduct the investigation, instead of hiring a licensed private investigator or an attorney. The person conducting the investigation should be knowledgeable about standard investigatory practices. When the allegations are more serious and complex, the person conducting the investigation should have prior experience conducting such investigations.
The guide states that at a minimum, training in conducting investigations should cover (1) information about the applicable law and investigation best practices, (2) how to determine the scope of the investigation, (3) effective interviewing of witnesses, (4) weighing credibility, (5) analyzing information and (6) writing a report.
The standard of proof to be used by an investigator in reaching his or her findings is the “preponderance of the evidence” standard, also called “more likely than not.” The investigator is making a finding that it is more likely than not that the alleged conduct did or did not occur. The guide states that investigators should use the “preponderance of the evidence” standard to make findings of fact, but should not reach conclusions of law. The guide notes that “due process” in the context of an investigation is simply a formal way of saying “fairness,” and emphasizes that employers should be fair to all parties during an investigation by conducting thorough interviews with the complaining party, the accused, and relevant witnesses.
The guide offers practical advice for investigators on how to make credibility determinations during an investigation, keep investigations confidential to the extent possible, and ensure that employees who complain or participate in an investigation do not subsequently experience retaliation. The guide is a powerful resource for employers and investigators endeavoring to comply with the legal requirements regarding workplace investigations.
The guide is available at https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2017/06/DFEH-Workplace-Harassment-Guide.pdf, the revised regulations are available at http://www.dfeh.ca.gov/wp-content/uploads/sites/32/2017/06/FinalText.pdf?la=en.