May 9, 2017 California Department of Fair Employment and Housing Issues New Harassment Guide for Employers

Last week, the DFEH issued a new guide, revised brochure, and printable information sheet (referred to as a “poster”) to assist California employers in developing and enforcing effective anti-harassment programs.  The documents are all available on the DFEH’s website and should be reviewed by employers to refresh their understanding of the DFEH’s expectations.  Below are some highlights.

Discussion

The Guide

While the Guide primarily provides common sense steps employers can take to prevent and address harassment complaints, there are several specific recommendations employers should note. 

First, employers should conduct a prompt and “fair” investigation, defined as gathering objective facts from the complainant, accused, and witnesses.  Employers should also refrain from promising complete confidentiality to any individual involved in the investigation process, and should instead only promise limited confidentiality confined to those with a need to know.

Second, the DFEH cautioned against having inexperienced investigators.  Investigators are expected to be impartial and have special qualifications and/or training, such as training or certification by organizations for HR professionals.  Investigators must also have “sufficient communication skills” to conduct the interviews and deliver the findings in written or verbal form, and be trained to ask open-ended questions on all areas relevant to the complaint.  Investigators must also carefully and objectively document all witness interviews, the findings, and the steps taken to investigate the matter.

Third, investigators are expected to routinely make credibility determinations as part of the investigation.  The DFEH provided a list of factors to consider when making such a determination, including motive to lie, witness perceptibility and recall, inconsistent statements, demeanor, history of honesty/dishonesty, and inherent plausibility, among others.  Employers should review these categories with their investigators.

Fourth, investigators should not overstep their duties.  They should make only factual, not legal, conclusions.  Investigators should only apply a “preponderance of the evidence” or “more likely than not” standard, and not the higher “clear and convincing” or “beyond a reasonable doubt” standards.  In other words, investigators should only decide whether it was more likely than not that the alleged conduct occurred, and not any issues of legality.  Investigators may, however, make determinations regarding whether a company policy was violated.   

Fifth, employers have an obligation to investigate, even if the complainant asks the employer not to do anything.  Employers are also required to investigate anonymous complaints.  If an anonymous complaint is vague or lacking in details, the DFEH suggests employers may need to conduct an “environmental assessment” by finding out what is taking place in the workplace without focusing on a specific complaint or individual.

Sixth, complainants and all those who participate in an investigation must be informed that they will be protected from retaliation and encouraged to immediately report any suspicions of retaliation.  It is also incumbent upon employers to recognize that “retaliation” comes in many non-obvious forms, including being ostracized or the subject of gossip, and can occur at any time, not only right after an incident had been reported or investigated.

And lastly, an employer must take remedial or corrective action if there is proof of misconduct, even if the “misconduct” does not violate a company policy or the law.  Remedial measures can include training, counseling, “last chance” agreements, or “anything else that will put a stop to wrongful behavior.”  Employers are also encouraged to review what they have done in past similar situations to avoid claims of unfair or discriminatory remedial measures.

Brochure and Information Sheet

The brochure and information sheet provides in compact form information required by Government Code Section 12950(b) (e.g., definition of sexual harassment; examples of harassment; complaint procedure; DFEH contact information, etc.) and may be distributed by employers to satisfy their obligations under the statute.  

What This Means

Employers should identify someone in their organization to conduct investigations and insure that that person has received specialized investigation training, particularly how to effectively and impartially conduct investigations.  Employers should also review their current policies and procedures to ensure consistency with the new Guide.

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This E-Update was authored by Dani Nguyen Franke.  For more information, please contact Ms. Nguyen Franke or any other Paul, Plevin attorney by calling (619) 237-5200.