Employers Must Thoroughly Investigate Complaints Of Harassment, Discrimination, & Retaliation

August 20, 2018 – In order to do so, employers must investigate each and every complaint of harassment, discrimination, and retaliation. And if they don’t? In the Mendoza case, the Court held that a “lack of rigorous investigation is evidence suggesting defendants did not value the discovery of the truth so much as a way to clean up the mess uncovered when [the employee] made his complaint.” See Mendoza v. Western Med Ctr. Santa Ana, (2014) 222 Cal.App.4th 1334, 1344-45. Basically, an employer’s intent to harass and discriminate may be inferred from the failure to make a timely good faith investigation.

So how do you know if your employer is conducting a fair and thorough investigation into your complaint? Prior to even conducting an investigation, the employer should scrutinize the situation to determine whether any immediate steps needs to be taken. The Employment Equal Opportunity Commission (“EEOC”) has set forth examples of precautionary steps that may be necessary, including: “scheduling changes so as to avoid contact between the parties; transferring the alleged harasser; or placing the alleged harasser on non-disciplinary leave with pay pending the conclusion of the investigation.” The employer must also ensure the complainant “not be involuntarily transferred or otherwise burdened since such measures could constitute unlawful retaliation.”

As to the actual investigation, the California Fair Employment & Housing Commission (“FEHC”) maintains that “[t]he investigation must be immediate, thorough, objective and complete. Anyone with information on the matter should be interviewed. A determination must be made and the results communicated to the complainant, to the alleged harasser, and, as appreciate, to all others directly concerned.”

There are a few crucial points to keep in mind as far as workplace investigations:

1. ​​The employer must promptly initiate an investigation – at least within a few days of the employee’s complaint.
2. The investigator chosen should be impartial and well-trained in workplace investigations.
3. The investigator and employer must work together in determining the scope of the investigation. Too often we see the employer shift the investigation from the complainant’s concerns to an investigation into the complainant’s performance and/or behavioral. If this happens, something is off.
4. It is also important the investigator follow the employer’s policies and procedures when conducting the investigation, as a deviation may evidence bias.
5. The investigator should gather and document all relevant evidence, including interviewing key witness. In doing so, the investigator should take steps to maintain confidentiality, but not guarantee it, as sometimes it is important to reveal information in order to conduct an effective investigation.
6. Upon completing the investigation, the investigator should then provide the employer a written report identifying the investigation process, the evidence, and his/her findings/conclusion.
7. The employer must then follow up and take action, if necessary, to make sure the problem has been resolved.

These key points should help the employer take corrective action that is reasonably calculated to end the harassment and to prevent future harassment of its employees. Make sure your workplace complaints are being taken seriously.

Know your rights,

SK