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Sexual Harassment Investigations in the California Workplace

Workplace harassment based on sex is illegal under California’s Government Code 12940 (see DFEH vs. Calolina Ginning Co., Case No. E96-97; H-0676-00-E) and under EEOC Guidelines. “When an employer receives a complaint or otherwise learns of alleged sexual harassment in the workplace, the employer should investigate promptly and thoroughly. (Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (6/99). .  Many of our clients have tried to right the wrongs in the workplace by complaining to Human Resources or other responsible corporate offices only to be told that “our investigation revealed nothing illegal happened.” In the worse of these outcomes, our clients have actually been fired or demoted for making “baseless” claims. So, this blog concerns itself with what a correct investigation of sexual harassment in the workplace would consist of.

As your attorneys of record,  Danz & Associates will first obtain all documents that the company claimed they relied on–charts, reports, notes, co witness statements, manager statements, etc. You can expect the employer to rely on some type of privilege in refusing to give us the report. However, the employer can’t have their cake and eat it, too. If they refuse to give us documents (say based on attorney-client privilege), then they are not allowed to refer to the investigation in the litigation. Wellpoint Health Networks, inc., vs. Superior court, 59 Cal.App 4th 110 (1997). If the employer is not allowed to introduce their “investigation” due to their claim of privilege (they may also try to rely on “third party privacy” rights), then we are allowed to argue to the jury that there is no evidence of any investigation. This then prevents them from using the investigation as part of a prompt and appropriate corrective action. Faragher vs. City of Boca Raton, 524 US 774 (1998).

Let’s assume that the employer gives us the investigation results. We then move to the deposition phase of discovery where we find out the background of the investigator, prior training and experiences; whether there was a second investigator (and if so the role of each); neutrality of the investigator (was this a third party and if so, did they routinely rely on this employer for repeat business?); if in-house, did any people that were the subjects of the investigation actually report directly or indirectly to the investigator; how “neutral” was each investigator?

Further, your attorneys should examine what Guidelines the investigator(s) relied on. did they use EEOC Guidance? did they follow the steps recommended? With appreciation to Mike Robbins, a professional investigator, here are some routine questions to ask:

1.  What were you charged with investigating? (for example, if our client had complained about age and sex discrimination, and the investigator was only told about age, that would equal no sex investigation whatsoever).

2. If the investigator did find other types of discrimination during the investigation, what did they do about it?

3. Were the parties told anything about the investigation? How did the investigator maintain confidentiality and assure parties they would not be retaliated against for telling the truth?

4.  How promptly did the company hire the investigator and then how long did it take to get the investigation into gear? Was your employee put on unpaid leave during any of this time?

5. Did the employer advise the investigator of any court or administrative agency charges, such as might have been filed by the employee with the DFEH or EEOC? If so, the employer maintains a duty to investigate, regardless of how they learned and whether or not our client remained employed. Many employers will claim that they stopped when the client left as the “problem was gone”.

6. Get all notes taken, not just the formal typed final report! Was the witness given the chance to review the notes for accuracy? Were the notes kept or destroyed? If destroyed, your attorney should argue this amounts to intentional spoilation of evidence.

7. How were the witnesses questioned? Worst question: “Did you see any harassment?” this requires the witness to speculate on what is illegal harassment. The investigator should ask open-ended questions and should attempt to get facts vs opinions or rumors.  How thorough was the investigation? Were all witnesses to each meeting interviewed? Are there third parties who should have been included that might not have been convenient to meet with, such as vendors, suppliers, customers? Was the interview in person? Were other victims interviewed? What documents were reviewed?

8. Did the investigator reach any conclusions? If not, the entire process should be kept out of evidence (unless of course its favorable to our client). It is commonplace for workplace investigations to end with “inconclusive”, ie, unable to prove harassment occurred. This suggests that credibility was not resolved. Ask the investigator if credibility was considered. Was there a written report? If not, why? Ask the employer if their practice is to have written records. If the employer did not follow their own practice, why? Who authored the report? Did attorneys review it (“sanitize” it) first?

9. What does the investigator know about what happened as a result of the report? Any corrective action taken?  EEOC Guidance advises that “if no determination can be made because the evidence is inconclusive, the employer should still undertaken further prevent measures, such as training and monitoring”. Also ask the investigator if they found any retaliation against you, the client, as a result of your reporting (say) your supervisor.

10. Lastly consider hiring an expert to speak on the objective reasonableness of the employer’s factual determinations and whether an appropriate investigation was conducted. Holly vs. Caltech, 339 F.d 1158 (9th Cir 2003). Consider using the employers’ own policies and procedures as well as investigator statements to determine whether their own guidelines were followed.  If the defense firm has posted to the internet articles on proper investigation, ask the investigator if he followed those guidelines of his own counsel.

Make sure to check off the box “failure to take all reasonable steps to prevent harassment and discrimination from occurring” when you file (or ask your attorney to file) a DFEH complaint. Gov’t Code Section 12940(j)(1) & (k).

We have successfuly resolved hundreds of sex harassment claims throughout California. With offices in Los Angeles (5), San Francisco, Santa Rosa, Sacramento, Fresno, San Bernardino, Orange County and San Diego, we are able to meet you locally and you will ALWAYS have two attorneys assigned to your case. And I’ll be proud to be one of them! Call and lets chat. Steve Danz 877 789-9707.