New California Workplace Harassment Guide Is Useful Tool for Preventing and Addressing Harassment, Discrimination, and Retaliation

by Reed Smith
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On May 2, 2017, the California Department of Fair Employment and Housing (DFEH) issued a Workplace Harassment Guide, which offers recommendations for employers on how to prevent and address harassment in the workplace. While the Guide focuses on workplace harassment, it also is a useful tool for how to handle other workplace issues, including discrimination and retaliation.

Preventing Harassment

The Guide provides a list of suggestions to create an effective anti-harassment program, including, but not limited to:

  • A written policy, which includes the required components of an anti-harassment policy as set forth in 2 CCR § 11023. The policy should be easy to understand, and should be distributed to employees and discussed at meetings regularly (e.g., every six months)
  • Management who sets good examples by knowing and following the policies
  • Training for supervisors and managers, as required under AB 1825 and AB 2053
  • Specialized training for individuals handling the complaints
  • Policies and procedures for investigating and responding to complaints
  • Conducting prompt, detailed, and fair investigations
  • Taking prompt and fair remedial action

Investigating and Addressing Complaints of Harassment

The Guide goes into detail for what is required to conduct a fair investigation, including, but not limited to, interviewing the complainant and the accused party, as well as any pertinent witnesses, and reviewing any relevant documents or other evidence necessary to obtain all of the facts. The Guide provides the following recommendations for conducting workplace investigations:

  • Impartiality
  • Internal or qualified external investigator who is knowledgeable in anti-harassment policies and investigation techniques
  • Training programs for investigators

Even more useful is the Guide’s instruction on confidentiality, which states that employers “can only promise limited confidentiality,” and that the information may be limited to individuals on a “need to know” basis. Additionally, the Guide reminds employers that while managers can be told to keep an investigation confidential, generally, an employer cannot require employees to keep an investigation confidential because that may interfere with the employees’ right to talk about their work conditions under the National Labor Relations Act.

Additionally, the Guide discusses how to make credibility determinations, and provides a list of nine factors. It states that the investigator should make findings based on a “preponderance of the evidence” standard – the same standard used in a civil case of discrimination or harassment. Additionally, the Guide recommends that the investigator only make factual conclusions rather than legal conclusions – e.g., finding a violation of workplace policy, not a violation of the law. The Guide also reminds employers to carefully document the investigation, including interviews, signed witness statements, the findings made, and steps taken during the investigation. This is an incredibly important part of the procedure and something we recommend to our clients, as it becomes very useful in minimizing risk in the event a lawsuit arises.

The Guide provides helpful suggestions on how to handle anonymous complaints – act the same as if the complaint was not anonymous – and requests by the complainant that the employer do nothing (hint: the employer should never “do nothing”). Employers are reminded that they should always tell employees involved in an investigation that the employer has an anti-retaliation policy, and should ensure that the policy is well enforced.

Lastly, the Guide states that employers are required to take prompt remedial action whenever there is proof of any misconduct – not necessarily a violation of company policy or the law. According to the Guide, remedial action includes:

  • Training
  • Verbal counseling, one-on-one counseling
  • “Last chance” agreements
  • Demotions
  • Salary reductions
  • Rescinding a bonus
  • Termination
  • Anything else that will stop or prevent the wrongful conduct

The full text of the Workplace Harassment Guide for California Employers can be found here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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