California Employers Should Review Guidance on Handling Workplace Harassment Claims

California Employers Should Review Guidance on Handling Workplace Harassment Claims

November 3, 2017
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Following recent news about sexual harassment scandals, more people may come forward with similar claims against their employers. California businesses should note state-specific harassment prevention rules and recommendations, which are covered in a comprehensive state guide.

The document was released in May and was developed jointly by the California Department of Fair Employment and Housing (DFEH) and the California Task Force on the Prevention of Sexual Harassment in the Workplace. It covers a lot of ground, including topics that can be confusing for employers—such as confidentiality, credibility, burden of proof and the type of questioning that should be used in a complaint investigation.

The DFEH also released a brochure that discusses ways to prevent and correct misconduct.

[SHRM members-only toolkit: Complying with California Sexual Harassment Training Requirements]

Anti-Harassment Program Components

According to the guide, an effective anti-harassment program should include:

  • A written policy. The policy should be distributed to all workers, and it should be regularly discussed at company meetings.
  • A good workplace culture. Managers should be role models of appropriate behavior.
  • Training for supervisors. Businesses with 50 or more employees must train supervisors on sexual harassment prevention. Under A.B. 1825—which state lawmakers approved in 2004—businesses must provide two hours of this training once every two years. Effective in January 2015, A.B. 2053 expanded this training to include how to prevent abusive conduct. And beginning in January 2018, under S.B. 396, the training will need to include gender identity, gender expression and sexual orientation harassment prevention.
  • Training for complaint-handlers.
  • Policies for responding to and investigating complaints.
  • Prompt, thorough and fair complaint investigations.
  • Prompt and fair remedial actions.

Managing Complaints and Investigations

According to the brochure, the employee making the complaint shouldn't be required to report the complaint to his or her immediate supervisor. The employee should be able to report it in multiple ways, including by telling a company-designated contact (such as an HR manager or department executive), calling a complaint hotline, or telling an ombudsperson.

If an employer receives a report of misconduct, it should determine whether the behavior is serious enough to merit conducting a formal investigation, according to the guide.

During an investigation, companies must be fair to each party, the guide emphasizes, by following these steps:

  • Interviewing the person who made the complaint, ideally in person.
  • Giving the accused party an opportunity to respond, ideally in person.
  • Interviewing witnesses and reviewing any relevant documents.
  • Making a fair conclusion.

Confidentiality

The issue of confidentiality can be confusing for employers, said task force member Chaya Mandelbaum in an interview with SHRM Online.

"Confidentiality is not something that can be fully guaranteed, for both pragmatic and legal reasons," he said.

According to the guide, companies can only promise limited confidentiality—that the information will be shared with those who must have it.

"To conduct a thorough investigation, there are going to be people who need to know," said Mandelbaum, who is an attorney with Rudy Exelrod Zieff & Lowe in San Francisco. He also is chair of the California Fair Employment and Housing Council.

During the investigation, it's likely that people will know or assume specific details about the allegations, the guide states. Also, the person receiving the complaint typically will need to discuss the claim with others in the company.

The Investigator

Companies should make sure the investigator is qualified and trained.  Investigators should have strong communication skills, understand relevant laws and policies, know how to question witnesses and document interviews, and know how to analyze information.

Investigators can get training from various sources, such as organizations for HR professionals, associations for workplace investigators and enforcement agencies.

The person investigating the complaint must determine whether he or she has any biases that would interfere with reaching a fair conclusion, according to the guide. Even the appearance of bias is problematic.

For instance, if the investigator is friends with either party—whether it's an actual friendship or a perceived friendship—the investigator might need to recuse himself or herself.

Employers can use either an internal investigator or an external investigator. If the allegations are being made against a powerful person at the company—as in the Harvey Weinstein situation—it's a good idea to use an independent investigator, according to Mandelbaum.

Open-Ended Questions

Investigators are advised to ask more open-ended questions that solicit "how" or "why" something happened. For example, an investigator might say, "Tell me about your department meeting on Monday." This type of inquiry encourages a meaningful and detailed response, rather than a simple "yes" or "no" or a one-word answer. "Studies have shown that open-ended questions are better at eliciting information while not causing people to feel attacked," the guide states.

With open-ended questions, the investigator isn't suggesting a response, which allows him or her to really hear how the person conveys the information, said Amy Oppenheimer, a task force member and attorney in Berkeley. She is also chair of the labor and employment section of the State Bar of California.

Additionally, she suggests that investigators avoid asking the accused party questions that make assumptions, like: "So when you were at work on Wednesday and you saw Alice, what did you tell her?" This assumes the person was at work and saw Alice. Instead, ask the person whether he was at work on Wednesday and, if so, when he arrived. Then ask the accused party to walk you through his day at work.

Credibility

Many times, there are no witnesses to an alleged harassment incident other than the accused and the accuser. When the parties disagree about what happened, investigators need to weigh the credibility of each party's account.

The investigator can use many credibility factors, including inherent plausibility and motive to lie. "For example, a complainant who complains about harassment may have been seen to be upset shortly after the event, or may have told someone right after the event," the guide states. "This would tend to bolster his or her credibility."

E-mails or text messages might also bolster or reduce a witness's credibility.

Making credibility determinations based on a person's demeanor, however, may not be the best approach. A person's outward behaviors, such as facial expressions, body language and tone of voice, may be exhibited for a variety of reasons that are unrelated to the investigation.

For example, not making eye contact might be perceived as a red flag, but some people avoid eye contact for cultural or other reasons, according to Oppenheimer.

It is best to make credibility determinations based on the objective evidence, according to the guide. 

Drawing Conclusions

Investigators should use the "preponderance of the evidence" standard that is used in many civil cases. This is also known as the "more likely than not" standard.

According to the guide, this means that the investigator makes a finding that it's "more likely than not" that the alleged misconduct occurred or "more likely than not" that it didn't occur.

Investigators should draw factual conclusions, not legal conclusions.

"Sometimes, internal investigators will also reach a conclusion regarding whether behavior did or did not violate a company policy," the guide states. "Note that violating a workplace policy is a different standard than violating the law, which is one reason that investigators should not make legal findings."

Employers should ensure that workers aren't retaliated against for bringing harassment complaints. Also, they should impose a remedial action that is "commensurate with the level of misconduct and that discourages or eliminates recurrence," according to the guide. Appropriate remedial measures may include training, counseling, a demotion and termination.

Toni Vranjes is a freelance business writer in San Pedro, Calif.

 

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