Highlights of the CRD's Harassment Prevention Guide for California Employers

In March 2025, the California Civil Rights Department (CRD) released an updated Harassment Prevention Guide for California Employers (the "Guide"). This publication replaced the Workplace Harassment Guide for California Employers issued in 2017 by the CRD’s predecessor, the California Department of Fair Employment and Housing (DFEH).

The Guide helps California employers understand their obligation to take reasonable steps to prevent and correct workplace harassment. It also provides detailed guidance on how to respond to and investigate reports of discrimination, harassment, and retaliation.

This article highlights some of the CRD’s key guidance for conducting workplace investigations.

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, if the complaining or accused party has more authority at the company than the investigator, or where the investigator has an actual or perceived personal relationship with the complaining or accused party, an appearance of bias may infect the investigation.
• The investigator must be qualified, which includes being knowledgeable about standard investigation practices and having sufficient training.
• For more complex and serious allegations, “it is also 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 and fair” conclusion after gathering and analyzing all relevant information, even if there is no direct witness to an event. To aid in this determination, the Guide provides an extensive list of appropriate factors to use to evaluate credibility:

1. Inherent plausibility – is it plausible that the events occurred in the manner alleged?
2. Motive to lie – is there any bias, interest, or other motive for being untruthful?
3. Corroboration – did any witness corroborate some or all of the complainant’s allegations or the accused’s response?
4. Extent the witness was able to perceive, recollect, or communicate about the matter – was the witness in a position to adequately hear, see, and/or remember what happened?
5. History of honesty/dishonesty – although the Guide cautions about making character judgments, if an individual is known to have been dishonest, that can weigh against their credibility.
6. Habit/consistency – is this person known to engage in the alleged behavior regularly, such as hugging all females or all employees in greeting?
7. Inconsistent statements – do the witness’s statements contain inconsistencies that are not easily explained?
8. Demeanor – the Guide mentions this but warns that most people cannot effectively evaluate truthfulness from demeanor, so investigators should use this factor with caution and rely as much as possible on objective evidence instead. Note that this is a departure from federal EEOC Enforcement Guidance, which provides no such admonition.

Interestingly, the updated Guide deleted one credibility factor from the 2017 DFEH Guide without explanation: “Manner of testimony – hesitations of speech and evasiveness, especially when the witness has given direct answers to foundational questions.”

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 conduct 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 the 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 appropriate for the complainant to handle the matter alone.”

Additional Guidance

The Guide also provides more detailed guidance on the following aspects of workplace investigations:

• Determining whether a complaint merits a formal investigation versus informal coaching
• Initiating and conducting the investigation in a timely fashion
• Ensuring “due process,” or fairness, in the investigation process and its outcome
• The limitations and pitfalls of promising or requesting confidentiality
• Evaluating the investigator’s qualifications and lack of bias
• Appropriate methods for questioning
• Applying the “preponderance of the evidence” standard
• Reaching factual, not legal, conclusions
• Documenting interviews, steps taken, and findings
• Preventing retaliation

Conclusion

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 the CRD’s guidance is not legally binding, plaintiffs’ attorneys may use these principles to question the adequacy of an employer’s investigation. A successful attack on the investigation can create a question of pretext and potentially defeat an employer’s motion for summary judgment.

By paying attention to the Guide’s principles, both when selecting a qualified investigator and when conducting workplace investigations, employers can more effectively resolve the current conflict and also safeguard against future liability.