Under Title VII and the Fair Employment and Housing Act (“FEHA”), the employer has an affirmative obligation to take all reasonable steps necessary to prevent harassment, discrimination, or retaliation. In order to comply with this obligation, employers must investigate all complaints of harassment, discrimination, or retaliation. If an employer receives a complaint, failing to investigate at all or failing to conduct an appropriate workplace investigation could lead to liability on a failure to prevent harassment claim. Importantly, the Department of Fair Employment and Housing, the agency which enforces the FEHA, may prosecute an alleged failure to investigate as an independent violation, even where there is no legally actionable claim of harassment. An employer’s ability to defend its position that it has taken all reasonable steps to prevent harassment will depend heavily on the quality of the underlying investigation. For these reasons, it is imperative that employers:
- Promptly and thoroughly investigate all claims of harassment, discrimination, or retaliation.
- Document the investigation. This includes documenting the methodology the investigator used during the investigation, the investigator’s factual findings, credibility determinations, and any conclusions reached.
- Take prompt and effective remedial action if warranted.
The sufficiency, thoroughness, and fairness of an employer’s workplace investigation are very commonly challenged in subsequent litigation. Failure to take any of the three steps above could significantly compromise an employer’s ability to defend itself on a failure to prevent harassment claim.
- Prompt and Thorough Investigation
The investigator chosen should be impartial and well-trained in workplace investigations and follow all the employer’s policies and procedures to ensure an appropriate and fair investigation.
While most employers are aware of the obligation to investigate harassment claims, one common pitfall is failing to initiate or complete an investigation in a timely fashion. The investigation should ideally start within a matter of days of the receipt of the complaint (if one is filed) or of when the employer otherwise becomes aware of possible harassment or other alleged misconduct. If an investigation is delayed, then memories may fade, evidence may disappear, and the employer may be accused of failing to take all reasonable steps to prevent harassment.
Sometimes an employer may start the investigation promptly, but not complete the investigation in a reasonable amount of time. This could happen for any number of reasons including for example, witness unavailability, a change in HR staff, or change of an outside investigator that delays the completion of the investigation.
How long an investigation should take is a fact-driven analysis and can vary greatly depending on many things, including the nature and extent of the claims being investigated, and the number of subjects, witnesses, and documents involved. The important thing is that the employer should be mindful of the duty to initiate and complete the investigation promptly, monitor an investigation’s progress, and work towards expeditiously completing the investigation. For example, if a staff member in charge of conducting investigations leaves the employer on short notice, the status of his or her open investigations should be reviewed and reassigned immediately and not allowed to languish unattended. If there are specific reasons for delay out of the employer’s control, such as unavailability of witnesses, those reasons should be well-documented so that they may be explained later if the sufficiency or promptness of the investigation is challenged in subsequent litigation.
- Document the Investigation
The investigator should provide a written report on the investigation. The report should include all documents reviewed, all witnesses interviewed, all credibility determinations made, and all factual findings and conclusions reached by the investigator.
If the investigator fails to interview key witnesses or review key documents, or if the report fails to identify the witnesses and documents the investigator considered in reaching his or her conclusions, then the thoroughness and fairness of the investigation may be compromised.
- Prompt and Effective Remedial Action
Finally, once the investigation is complete, if the investigation findings reveal that harassment in violation of the employer’s policy occurred, the employer must take corrective action that is reasonably calculated to end the current harassment, and to prevent future harassment of its employees. Appropriate corrective disciplinary action against the offending employee is always required. Keep in mind that when imposing discipline on public employees, the employer must follow appropriate statutory, regulatory, or collectively-bargained procedures. Otherwise, the employer could be liable to the disciplined public employee.
Case law, as well as my experience as an employment attorney, has shown that employers who follow the three steps above are much more likely to successfully defend against a failure to prevent harassment claim.