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TURNING EMPLOYER WRONGS INTO EMPLOYEE RIGHTS

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Employer did not investigate my sex harassment charges

California employees who complain about sexual harassment should be aware of their right to a full and impartial investigation of their charges. Under both state (Government Code 12940(k), and federal law (Title VII and EEOC guidelines such as N 915-050), the law requires a “prompt, thorough and impartial investigation”. Here are some questions and answers commonly asked about this obligation of your California employer:

I am afraid of retaliation if I ask for an investigation; what should I do?

The duty to investigate remains even if you the employee do not want it or consent to it. You are protected from retaliation, such as a termination,  by other provisions of law and higher damages may be available if you are a victim of intentional retaliation (see my blog on California’s punitive damages laws and recoveries). In the event you the employee refuses to participate in an investigation or claim, under the “avoidable consequences” doctrine, an unreasonable failure to use the preventative measures may require the court to reduce your potential damages. (McGinnis case).

Do I have a right to see the investigation results?

Generally, this is complicated by several factors, including whether the firm hired an attorney to conduct the investigation and later claims attorney-client privilege. However, if the employer makes that claim, they will not be allowed to “have their cake and eat it too”, and will be required to turn over the report if they rely on the fact that they did it. You the employee also have the right to inspect your personnel file, which might contain at least parts of the investigation. (See Labor Code 1198.5). You are also entitled to copies of all documents you have signed. LC 432a. The Labor Code is enforced by the California Department of Labor Standards Enforcement.

No discussion of this issue can be complete without mentioning the Wellpoint decision. Here, the firm’s attorneys conducted the investigation and the trial court permitted the documents to be turned over on the grounds that the attorneys were acting in a non-attorney (ie, investigator) capacity and the privilege as not applicable. The appeals court while issuing a ruling not entirely in support of the trial court, reaffirmed the loss of the attorney-client and work product privileges and ordered the investigative material produced.

In the follow-on Kaiser decision, the court held that an investigation by a non-lawyer would be fully disclosed to plaintiff’s attorney, but not the segmented portions based on attorney-client privilege.

I filed my sex harassment complaint two months ago, but nothing has happened and I see the harasser every day, not sure if he knows I reported him.

Check with the HR department and any known investigator to find out what they are doing. If you are in harm’s way, they should know that you have reasonable fears of retaliation. Your attorney might well consider the delay as acquiescence, indifference or approval.  Under California law, an employer acts unlawfully if they do not take “immediate and appropriate corrective action”. According to Curt Surls who co counsels with us in the South Bay area, a delay of up to a week may be considered reasonable under the circumstances.

What is the proper punishment for the harasser?

After the investigation has confirmed harassment based on sex, your boss must take correction action which is designed to halt further harassment and minimize risks of re occurrence. This usually means disciplining the harasser; however, as this involves a private, personnel matter between the harasser and you, you will probably not be told exactly how the harasser was disciplined.

The company confirmed my complaints, yet I still have to report to the harasser every day. Awkward, yes?

Under the federal case of Ellison vs. Grady, failure to remove the harasser may create a hostile work environment and the harassment may not have been fully remedied. For sure, your work place should not be worse off as a result of making your complaint.

We are indebted to Curt for excellent insights into this area of law. Only an attorney familiar with the law in this area and in your jurisdiction can give you meaningful legal advise, so please consult with one immediately. We practice sexual harassment in our ten offices throughout California.