1. Have a good anti-harassment policy and conduct required training for supervisors.
It is legally required that all California employers provide information to employees regarding harassment. The Department of Fair Employment and Housing provides the following guidelines for employers:
Employers must help ensure a workplace free from sexual harassment by distributing to employees information on sexual harassment. An employer may either distribute a brochure that may be obtained from the Department of Fair Employment and Housing or develop an equivalent document, which must meet the following requirements:
• The illegality of sexual harassment
• The definition of sexual harassment under state and federal laws
• A description of sexual harassment, utilizing examples
• The internal complaint process of the employer available to the employee
• The legal remedies and complaint process available through the Department and the Fair Employment and Housing Commission
• Directions on how to contact the Department and the Fair Employment and Housing Commission
• The protection against retaliation for opposing the practices prohibited by law or for filing a complaint with, or otherwise participating in investigative activities conducted by, the Department or the Commission
Also, since 2005, California employers with more than 50 employees must provide two hours of sexual harassment prevention training to supervisors and managers within six months of hire or promotion, and every two years after that. Completion of the training should be documented in the supervisor’s personnel file.
2. Have a good internal complaint procedure.
Don’t just use some boilerplate in an employee handbook – really think this through. Who should the employees complain to and what different avenues can the company set up to have them complain? This is key in using a defense recognized in California – the avoidable consequences doctrine. This defense was just reaffirmed by a California appellate court and it could limit the damages the plaintiff could receive if they don’t complain under the employer’s complaint procedure.
3. Treat all complaints seriously and perform proper investigations.
It is recommended to have someone who is well-versed in sexual harassment investigations and the law to conduct the investigation. I also recommend that two people be involved in the investigation, this allows one person to ask questions and observe the witnesses’ credibility and the other person to focus on taking notes and documenting the interviews. A good overview of how to conduct an investigation is published at the EEOC’s website here: http://www.eeoc.gov/policy/docs/harassment.html.
4. Investigate complaints immediately.
The longer it takes for a company to start an investigation, the more open the company will be to claims that it did not treat complaints of harassment seriously. Also, the sooner you speak with witnesses and obtain statements, the better everyone’s memory of the events will be.
5. Prevent any form of retaliation from occurring.
Even if you conclude that no harassment took place, but the employee is retaliated against by the manager for making a complaint, the employee would still have a retaliation claim.