DFEH Releases New Workplace Harassment Guide for California Employers
In May 2017, the Department of Fair Employment and Housing (DFEH) released a new Workplace Harassment Guide for California Employers to help California employers understand their obligation to take reasonable steps to prevent and correct workplace harassment. It provides detailed new guidance regarding how to respond to and investigate reports of harassment, including harassment based on sex.
It is important for employers to be aware of the Guide when conducting workplace harassment, discrimination, and retaliation investigations. Below are some highlights from the Guide:
Recommended Practices
The Guide provides some “recommended practices” for conducting workplace investigations:
- The investigation must be impartial, and investigators must evaluate their own biases as well as whether their involvement creates a perception of bias (for example, where the complaining or accused party has more authority in the organization than the investigator, or where the investigator has an actual or perceived personal relationship with the complaining or accused party).
- The investigator must be qualified, which includes being knowledgeable about standard investigations practices and having sufficient training.
- For more complex and serious allegations, “it is important for the investigator to have prior experience conducting such investigations.”
- External (non-employee) investigators must be licensed private investigators or attorneys acting in their capacity as an attorney (per Bus. & Prof. Code §§ 7520 et seq.).
Credibility Determinations
The Guide recognizes that many investigations require a credibility determination. It is up to the investigator to reach a “reasonable” conclusion after gathering and analyzing all relevant information, even if there is no independent witness to an event. To aid in this determination, the Guide provides an extensive list of appropriate factors to use to evaluate credibility:
- Inherent plausibility – whether it is plausible that the events occurred in the manner alleged.
- Motive to lie – based on the existence of a bias, interest, or other motive.
- Corroboration – whether a witness corroborates some or all of the allegations or the accused’s response.
- Extent of witness’ ability to perceive, recollect, or communicate – considering where the person was, what else was happening, etc.
- History of honesty/dishonesty – although the Guide cautions about making character judgments, if an individual is known to have been dishonest, it can weigh against his/her credibility.
- Habit/consistency – this refers to allegations of a behavior that someone is known to do regularly, such as hugging all females in greeting.
- Inconsistent statements – where an individual provides statements that are inconsistent or not easily explained.
- Manner of testimony – hesitations of speech and evasiveness, especially when the witness has given direct answers to foundational questions.
- Demeanor – the Guide warns investigators to use caution when evaluating demeanor, since it may be difficult to judge. Note that this is a departure from federal EEOC Enforcement Guidance, which provides no such admonition.
Anonymous Complaints and Reticent Complainants
Employers should not ignore anonymous complaints and should investigate them like any other complaint. If an anonymous complaint is not sufficiently detailed, the employer may do an “environmental assessment or survey to try to determine where there may be issues.” This could mean interviewing all the employees in the affected workgroup to see if they have experienced or witnessed any behavior that has made them uncomfortable.
Employers also should not fail to investigate just because the complaining party asked the employer to keep the complaint confidential or not get involved. If allegations are minor, employers should at least provide coaching on resolving the issue and follow up to ensure the harassment has stopped. If the allegations are more serious, “it is not acceptable to have the complainant handle the matter alone.”
Additional Guidance
The Guide also provides more detailed guidance on the following issues pertaining to investigations:
- Initiating and conducting the investigation in a timely fashion
- How to ensure “due process,” or fairness, in the investigation process and its outcome
- Confidentiality and its limitations
- Appropriate methods for questioning
- Applying the appropriate “preponderance of the evidence” standard
- Recommendations on reaching factual, not legal, conclusions
- How to document interviews, steps taken, and findings
- Preventing retaliation
In sum, the Guide helps California employers understand their obligation to conduct a prompt, fair, and thorough investigation in response to allegations of workplace harassment, discrimination, and retaliation. Although it does not have direct precedential value, plaintiffs’ attorneys may use it to attack the appropriateness of an employer’s investigation, which can raise a question of pretext and potentially defeat an employer’s motion for summary judgment. Therefore, it is important to pay close attention to the Guide both when selecting a qualified investigator and in conducting EEO investigations.