Question: In the last few months there have been numerous reports of male celebrities and politicians allegedly engaging in inappropriate sexual conduct in the workplace. It seems like each time there is a new report the alleged offender either resigns or is discharged immediately. Is that how claims of sexual harassment and misconduct should be handled by employers?
Answer: Not exactly. Between continuing fallout following the Weinstein scandal and the resurgence of the #METOO social activism campaign, employers are understandably anxious when it comes to addressing workplace sexual harassment and misconduct. Although employers are required to prevent and remedy workplace harassment, it is important that they have a written policy that they follow when a complaint is raised.
Once an employer receives an allegation of conduct that may violate their policy, it must act. When an employee alleges harassment, the employer essentially always has a legal obligation to investigate the allegation and if it violates its policy, must take corrective action. The investigation must be impartial and thorough.
Conducting a full investigation can take at least several weeks depending on the allegations and the number of witnesses involved. In the meantime, employers should act immediately to protect the complainant. Some immediate preventative measures include altering work assignments or schedules so that the accused no longer works with or supervises the alleged victim, or possibly placing the accused on a temporary leave during the investigation. In taking these measures, the employer must ensure that the complaining employee is not potentially being subjected to retaliation by being given an unfavorable shift or assignment.
Employers should conduct the investigation as soon as possible. For serious complaints, it is recommended that an employer hire a qualified, neutral third party to do the investigation. The person conducting the investigation should not have any biases that would interfere with coming to a fair and impartial finding. Regardless of who conducts it, a thorough investigation should include interviewing the complainant, the accused, and relevant witnesses, and review of any applicable documents, while ensuring confidentiality to the extent possible. The complainant and witnesses should be assured that they cannot be subjected to retaliation and if they feel they are, they should report it immediately. The person doing the investigation should carefully and objectively document witness interviews, the findings made, and the steps taken to investigate the matter. Employers should keep all documents, notes and statements, as well as any investigative report in a separate confidential file. Investigation findings should be based on an objective weighing of the evidence collected, including credibility of the person complaining, the accused, and witnesses.
At the conclusion of the investigation, an employer must take appropriate remedial steps if the findings show that harassment, discrimination, retaliation, or violation of a workplace rule occurred. Employers should take remedial action commensurate with the level of misconduct, and that deters recurrence. Such measures can include training, counseling, discipline, and if the investigation warrants, discharge. The employer should discuss the decision with both parties and offer the victim and the harasser the opportunity to present any additional information to prove the truth of his or her allegations or denials. The employer must ensure that the complainant is not subjected to retaliation, even if the findings of the investigation do not support a complaint of harassment. A Workplace Harassment Guide for California Employers is available through the Department of Fair Employment and Housing at https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2017/06/DFEH-Workplace-Harassment-Guide.pdf