investigating sexual harassment

Matt Lauer’s abrupt departure from NBC illustrate important lessons employers should take away from this week’s events in how to investigate and respond to harassment claims.  It is important it note that NBC is not like most employers in that this one of the most newsworthy and public harassment allegation cases in the nation and it must manage public relations at the same time of mitigating its legal liability.  However, there are still lessons employers should pay attention to arising out of this case, leading to this Friday’s Five:

1. Be up-front and as accurate as possible in any initial reports or disclosures to the public

Employers need to be very careful in issuing any public statements about harassment allegations and investigations.  As set forth below, in addition to likely being evidence in litigation, it could create additional defamation liability for all of the parties involved.

If a company does issue a statement, it needs to be well vetted and with knowledge of all of the facts.  For example, NBC’s responses to the Lauer issues raised questions.  First NBC issued a statement from Chairman Andrew Lack read on the Today Show Wednesday morning stating that the woman’s complaint was “the first complaint about his behavior in the over twenty years he’s been at NBC News.”  Later in the same day, NBC released a second statement stating, “We can say unequivocally that, prior to Monday night, current NBC News management was never made aware of any complaints about Mat Lauer’s conduct.”  The fact that NBC issued a qualifying explanation that “current NBC News management” was never informed later in the day, when initially the company said that there was no complaint ever made about Lauer, had raised many questions: did former NBC News management know of complaints?  If so, what, if any, actions did the company take in response to those complaints?

2. Don’t rush to make any disclosures to the public

Even though the company’s intentions may be good in making disclosures as quickly as possible, it can create some issues, such as:

  • Making statements that may not be accurate because all of the facts have not been discovered and all of the witnesses have not been spoken to. Even though it may not be intended, providing changing facts makes it look that the company is attempting to cover up issues.
  • Creating additional legal liability: statements issued publicly will be evidence in any resulting litigation, and could be used against a party in the litigation.

As discussed below, given the liability that could be created, employers should think twice about issuing any statements to third-parties that do not have a need-to-know.

3. Be careful in discussing any aspect of the complaint and investigation to third-parties who do not have a need to know

Employers must also be careful about issuing any statements to other employees in the company or to the public that could result in a defamation charge by the alleged victim or the alleged harasser.  Employers can be liable for defamation for statements made about the employee’s termination, statements made during investigations, or statements about the employee after they left employment.  Generally, to prove defamation, a plaintiff needs to prove “(a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.”  Taus v. Loftus (2007).  A plaintiff must show that the statements caused damages such as damage to their reputation, that the statements made it harder to find another job, or emotional distress.  Again, it is critical that employers do not rush to make any statements before all of the facts are known.  A good rule of thumb is to only discuss the allegations, investigation, and ultimate findings about the investigations with the parties involved and individuals who have a need to know.

4. Must conduct “immediate and appropriate corrective action” in the workplace

Employer must act quickly in addressing the potential harassment in the workplace.  How soon the investigation must start depends on the circumstances.  In Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir. 1996) the employer’s response was held to be prompt where it began investigation on the day that complaint was made, conducted interviews within two days, and fired the harasser within ten days.  In Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994), the court held that an employer’s response to complaints were not immediate when it did not seriously investigate or reprimand the supervisor until after plaintiff filed charge with state FEP agency, even though the harasser was eventually discharged.  In Saxton v. AT&T, 10 F.3d 526, 535 (7th Cir 1993) the court found that the investigation was prompt when it started one day after complaint and a detailed report was completed two weeks later.  In Nash v. Electrospace Systems, Inc. 9 F.3d 401, 404 (5th Cir. 1993) the court held that the investigation was prompt when completed within one week.  The court in Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 319 (7th Cir. 1992) found the investigation was adequate when completed in four days.

However, employers have no duty to report findings to the public or other third-parties that do not have an interest in the harassment allegations and the subsequent investigation.  High profile harassment claims do carry an additional public relations aspect that must be considered, but employers have not legal duty to report findings to the public.  In fact, doing so may create additional liability as discussed above.

5. Employers may have to take actions internally before conducting the investigation

Based on the allegations and the facts of the case, as a precautionary measure, the employer should analyze if any immediate steps needs to be taken.  The EEOC set forth examples of precautionary steps that may be necessary include: “scheduling changes so as to avoid contact between the parties; transferring the alleged harasser; or placing the alleged harasser on non-disciplinary leave with pay pending the conclusion of the investigation.”  However, the employer needs to ensure that the complainant “should not be involuntarily transferred or otherwise burdened, since such measures could constitute unlawful retaliation.”

The type of precautionary actions that the employer should take depends on the facts they are presented with, as each case will vary.

Another Friday – another Friday’s Five.  November 2017, a great time to have a refresher course on five obligations employers have under California law to prevent and correct any potential harassment and discrimination in the workplace:

1. Duty to prevent harassment

The Fair Employment and Housing Act (FEHA) requires employers to take “all reasonable steps necessary to prevent discrimination and harassment from occurring.”  Gov. Code section 12940(k).  As part of this requirement, employers should have policies setting out a definition of sexual harassment, who employees should complain to regarding harassment, explain the types of discipline that may be used in harassment cases, that the complaint will be kept confidential to the extent possible, prohibit retaliation from employees who complain, and be distributed to employees with receipt acknowledged by the employee.

2. Duty to distribute California’s harassment pamphlet

California employers should develop a new hire packet.  One required document in this new hire packet is the California Department of Fair Employment and Housing’s information sheet.  It is required to be provided to employees “in a manner that ensure distribution to each employee.”  This requirement applies to all California employers, regardless of their size.

The DFEH provides the pamphlet (DFEH-185) online for employers to download here.

3. Duty to have written an anti- harassment, discrimination, and retaliation policy

Regulations issued by California’s Fair Employment and Housing Council took effect on April 1, 2016 set forth a requirement that employers adopt a written discrimination, harassment, and retaliation prevention policy that meet certain conditions.

The regulations provide that employers “have an affirmative duty to create a workplace environment that is free from employment practices prohibited by the Act.”  The regulations set forth that in addition to providing employees the Department’s DFEH-185 brochure on sexual harassment, or an alternative writing that complies with Government Code section 12950, employers are required to develop a harassment, discrimination, and retaliation policy that meets certain requirements, including the employer’s complaint procedure, instruct supervisors to report any complaints, and confirm that the employer will conduct a fair and timely investigation, among other items.  Most notably, the new regulations require employers to obtain employees’ acknowledgment of receipt of the written policy.

4. Duty to train supervisors

California employers with 50 or more employees are required to provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees who are employed as of July 1, 2005, and to all new supervisory employees within six months of assuming a supervisory position.  All covered employers must provide sexual harassment training and education to each supervisory employee once every two years.  In 2015, California requires that a portion of the training also address “abusive conduct.”  More information about what topics must be covered in the training, who qualifies to provide the training, as well as other requirements about the training can be found here.

5. Duty to investigate complaints

California Government Code section 12940(j) provides that it is “unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.”  The law also provides that employers are liable if they “fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.”  Gov. Code section 12940(k).  If the employer fails to take the preventative measures, they can be held liable for the harassment between co-workers.  If the harassment occurs by a manager, the company is strictly liable for the harassment.  If the harassment occurred by a non-management employee, the employer is only liable if it does not take immediate and appropriate corrective action to stop the harassment once it learns about the harassment.  Investigations must follow certain parameters in order to be deemed adequate under the law.  Click here for more information about conducting adequate investigations.

A couple of weeks ago I wrote about an employer’s obligations to conduct effective investigations into harassment claims.  I was typing at computerside tracked since that post, and promised to write about how employers should conduct the investigations.  This Friday’s Five lists five action items employers should utilize when conducting harassment investigations:

1. Selecting the investigator

Employers should take time to train an in-house person who can conduct harassment investigations.  This person, usually someone from Human Resources (but it does not need to be) should have additional experience and training about how to investigate these claims.  First, the person needs to be able to conduct appropriate investigations to limit the liability to the company.  Second, the person’s experience and training will likely be closely examined, if not challenged by opposing counsel if the case develops into litigation.  Therefore, someone with experience and who is well credentialed is preferred.

2. Investigation must be free of any appearance of influence or bias

The investigator must not have any personal involvement with any of the parties who are a part of the investigation.  To avoid any appearance of undue influence, the investigator must not be subject to any control or supervisory control from the alleged harasser.  This means that for smaller companies, or in cases where the owner or president of the company is alleged to have harassed someone, it is recommended that an outside third-party that is independent from the company be hired to conduct the investigation.

3. Ask the right questions

The EEOC provides the following examples of questions to ask during a sexual harassment investigation:

Questions to Ask the Complainant:

  • Who, what, when, where, and how: Who committed the alleged harassment? What exactly occurred or was said? When did it occur and is it still ongoing? Where did it occur? How often did it occur? How did it affect you?
  • How did you react? What response did you make when the incident(s) occurred or afterwards?
  • How did the harassment affect you? Has your job been affected in any way?
  • Are there any persons who have relevant information? Was anyone present when the alleged harassment occurred? Did you tell anyone about it? Did anyone see you immediately after episodes of alleged harassment?
  • Did the person who harassed you harass anyone else? Do you know whether anyone complained about harassment by that person?
  • Are there any notes, physical evidence, or other documentation regarding the incident(s)?
  • How would you like to see the situation resolved?
  • Do you know of any other relevant information?

Questions to Ask the Alleged Harasser:

  • What is your response to the allegations?
  • If the harasser claims that the allegations are false, ask why the complainant might lie.
  • Are there any persons who have relevant information?
  • Are there any notes, physical evidence, or other documentation regarding the incident(s)?
  • Do you know of any other relevant information?

Questions to Ask Third Parties:

  • What did you see or hear?
  • When did this occur? Describe the alleged harasser’s behavior toward the complainant and toward others in the workplace.
  • What did the complainant tell you?
  • When did s/he tell you this?
  • Do you know of any other relevant information?
  • Are there other persons who have relevant information?

4. Make credibility assessments

The EEOC again provides some guidance on the factors to use when determining which witnesses are more credible:

  • Inherent plausibility: Is the testimony believable on its face? Does it make sense?
  • Demeanor: Did the person seem to be telling the truth or lying?
  • Motive to falsify: Did the person have a reason to lie?
  • Corroboration: Is there witness testimony (such as testimony by eye-witnesses, people who saw the person soon after the alleged incidents, or people who discussed the incidents with him or her at around the time that they occurred) or physical evidence (such as written documentation) that corroborates the party’s testimony?
  • Past record: Did the alleged harasser have a history of similar behavior in the past?

None of the above factors are determinative as to credibility. For example, the fact that there are no eye-witnesses to the alleged harassment by no means necessarily defeats the complainant’s credibility, since harassment often occurs behind closed doors. Furthermore, the fact that the alleged harasser engaged in similar behavior in the past does not necessarily mean that he or she did so again.

5. Make a final determination

After making credibility determinations and evaluating the facts, management of the company must make a determination about whether or not the harassment occurred.  The parties should be informed of the determination.  Even if the employer determines that harassment did not occur, the EEOC takes the position that the employer should take steps such as preventative training and continued monitoring.  For example, even though the underlying harassment may not have occurred, a supervisor could still be held liable for retaliating against the employee who filed the harassment complaint.  Therefore, it is important for employers to inform the parties involved of the outcome, unacceptable behavior as a result of the determination, and to ensure ongoing compliance with the company’s findings and legal obligations.

 

A former employee at Uber has made news this week in claiming that she was subjected to sexual question markharassment while working at Uber, and her complaints were not satisfactorily resolved.  I don’t want to get into the judgment of who was possibly right or wrong in this case, but use it as a good opportunity for employers to review the basics of their obligations to investigate when an employee complains.  This Friday’s Five is the first of two posts on employer’s obligations to conduct prompt and effective investigations into harassment complaints.

1. Employers have a duty to conduct investigations.

Employers can be liable under California’s Fair Employment and Housing Act (FEHA) if they “fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.”  In addition, Government Code section 12940, subdivision (k), requires employers to take “all reasonable steps to prevent harassment from occurring.”  If the employer fails to take the preventative measures, they can be held liable for the harassment between co-workers.  If the harassment occurs by a manager, the company is strictly liable for the harassment.  If the harassment occurred by a non-management employee, the employer is only liable if it does not take immediate and appropriate corrective action to stop the harassment once it learns about the harassment.

2. The employer may have to take action before conducting the investigation.

Based on the allegations and the facts of the case, as a precautionary measure, the employer should analyze if any immediate steps needs to be taken.  The EEOC set forth examples of precautionary steps that may be necessary include: “scheduling changes so as to avoid contact between the parties; transferring the alleged harasser; or placing the alleged harasser on non-disciplinary leave with pay pending the conclusion of the investigation.”  However, the employer needs to ensure that the complainant “should not be involuntarily transferred or otherwise burdened, since such measures could constitute unlawful retaliation.”

3. The investigation must be effective.

The California Fair Employment and Housing Commission (FEHC) maintains that employers must “[f]ully and effectively investigate.  The investigation must be immediate, thorough, objective and complete.  Anyone with information on the matter should be interviewed.  A determination must be made and the results communicated to the complaint, to the alleged harasser, and, as appreciate, to all others directly concerned.”

4. The investigation must be immediate.

How soon the investigation must start depends on the circumstances.  In Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir. 1996) the employer’s response was held to be prompt where it began investigation on the day that complaint was made, conducted interviews within two days, and fired the harasser within ten days.  In Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994), the court held that an employer’s response to complaints were not immediate when it did not seriously investigate or reprimand the supervisor until after plaintiff filed charge with state FEP agency, even though the harasser was eventually discharged.  In Saxton v. AT&T, 10 F.3d 526, 535 (7th Cir 1993) the court found that the investigation was prompt when it started one day after complaint and a detailed report was completed two weeks later.  In Nash v. Electrospace Systems, Inc. 9 F.3d 401, 404 (5th Cir. 1993) the court held that the investigation was prompt when completed within one week.  The court in Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 319 (7th Cir. 1992) found the investigation was adequate when completed in four days.

5. The investigator must be experienced, unbiased and trusted. 

There is no legal prohibition that internal employees, such as the human resources manager, can conduct investigations into employee’s complaints.  If an internal employee of the company, the investigator does not have to meet any certain training requirements or are they required any particular background.  However, if the case results in litigation, employers should carefully consider who they appoint as the investigator as their background, credentials, and experience will be closely examined in court.

The employee obviously cannot have a conflict of interest or any bias towards the victim or alleged harasser.  Also, the alleged wrongdoer should not have any managerial control over the investigator in the organization.  If the alleged wrongdoer is a high level executive in the organization, then it may be appropriate to hire an outside lawyer versed in conducting harassment investigations to avoid any challenges to the adequacy of the investigation.  The investigator should have some experience in conducting investigations, some background knowledge of the law regarding harassment, understand the appropriate structure of how to conduct the investigation (i.e., who to start with first), and be a person who can communicate well with the parties involved, and if needed can testify confidently to defend the appropriateness of the investigation.

Next week, I will be discussing more of the particulars of how to conduct the investigation, examples of appropriate questions, and how to document the results.

Employers are strictly liable for the actions of its supervisors, managers or agents under the doctrine street cafeof respondeat superior.  Here are five key concepts employers must understand about the liability that could be created by managerial employees.

1. Respondeat superior holds employers automatically liable for actions by managers

The respondeat superior doctrine provides that “an employer may be held vicariously liable for torts committed by an employee within the scope of employment.”  As explained by the California Supreme Court in Patterson v. Dominio’s Pizza, there are “three policy justifications for the respondeat superior doctrine…prevention, compensation and risk allocation.”

2. Employers liability for non-supervisory employees

Under California’s FEHA, the employer is strictly liable for harassing action of its supervisors.  However, an employer is only liable for harassment by a coworker if the employer knew or should have known of the conduct and failed to take immediate corrective action.

3. Managers/supervisors under the respondeat superior doctrine

Under California’s FEHA, an employer is strictly liable for all acts of a supervisor.  A supervisor is generally defined as someone who has the discretion and authority to hire, direct, transfer, promote, assign, reward, discipline, direct, or discharge other employees or to recommend these actions.  See Government Code section 12926(t).

4. Which entities may be considered the employer under the respondeat superior doctrine

 In terms of defining who is the employers, courts in FEHA cases have looked to “the control exercised by the employer over the employee’s performance of employment duties….This standard requires a ‘comprehensive and immediate level of `day-to-day’ authority’ over matters such as hiring, firing, direction, supervision, and discipline of the employee.”  FEHA also defines employer to mean “any person action as an agent of an employer, directly or indirectly….”  This means that people not directly employed by the company can still create agency liability for the employer.

5. Issue: Can a franchisor be held liable for a franchisee’s supervisor’s conduct?

How far does the doctrine of respondeat superior extend when there are levels of agency, such as in a franchisor-franchisee relationship?  This was the issue addressed by the California Supreme Court in Patterson v. Domino’s Pizza.  The Supreme Court held that given the facts in that case, Domino’s Pizza was not liable for the franchisee’s manager’s acts.  The Supreme Court explained:

A major incentive is the franchisee’s right to hire the people who work for him, and to oversee their performance each day. A franchisor enters this arena, and becomes potentially liable for actions of the franchisee’s employees, only if it has retained or assumed a general right of control over factors such as hiring, direction, supervision, discipline, discharge, and relevant day-to-day aspects of the workplace behavior of the franchisee’s employees.  Any other guiding principle would disrupt the franchise relationship.

The Supreme Court did not hold the franchisor liable in the case because it did not “control the workforce, and could not have prevented the misconduct and corrected its effects.”  However, the Court issued a warning to franchisors:

A franchisor will be liable if it has retained or assumed the right of general control over the relevant day-to-day operations at its franchised locations that we have described, and cannot escape liability in such a case merely because it failed or declined to establish a policy with regard to that particular conduct.

I’ve been conducting many harassment prevention trainings for clients during the last few weeks.  Employers in California with 50 or more workers must provide at least two hours of sexual harassment prevention training to all supervisors.  The regulations regarding the training is becoming more and more detailed.  Therefore I thought it would be good to provide five reminders about sexual harassment training and required anti-harassment polices:

1. Prevention training must cover certain topics.

California law is very specific on the topics that must be covered during harassment prevention training.  Employers need to ensure that their training meets the legal requirements.  For more information about the topics required can be read here.

2. Harassment prevention training must take place at least every two years.

Employers with 50 or more employees must provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees who are employed as of July 1, 2005, and to all new supervisory employees within six months of assuming a supervisory position.  From, all covered employers must provide sexual harassment training and education to each supervisory employee once every two years.  In 2015, California requires that a portion of the training also address “abusive conduct.”

3. Employers need to develop an anti-harassment policy that includes a complaint procedure.

All employers should have an anti-harassment policy of their own developed and distributed to all employees.  Employers are required to develop a harassment, discrimination, and retaliation prevention policy that meets the following requirements:

(1) Is in writing;

(2) Lists all current protected categories covered under the Act;

(3) Indicates that the law prohibits coworkers and third parties, as well as supervisors and managers, with whom the employee comes into contact from engaging in conduct prohibited by the Act;

(4) Creates a complaint process to ensure that complaints receive:

(A) An employer’s designation of confidentiality, to the extent possible;

(B) A timely response;

(C) Impartial and timely investigations by qualified personnel;

(D) Documentation and tracking for reasonable progress;

(E) Appropriate options for remedial actions and resolutions; and

(F) Timely closures.

(5) Provides a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor, including, but not limited to, the following:

(A) Direct communication, either orally or in writing, with a designated company representative, such as a human resources manager, EEO officer, or other supervisor; and/or

(B) A complaint hotline; and/or

(C) Access to an ombudsperson; and/or

(D) Identification of the Department and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenues for employees to lodge complaints.

(6) Instructs supervisors to report any complaints of misconduct to a designated company representative, such as a human resources manager, so the company can try to resolve the claim internally. Employers with 50 or more employees are required to include this as a topic in mandated sexual harassment prevention training, pursuant to section 11024 of these regulations.

(7) Indicates that when an employer receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected.

(8) States that confidentiality will be kept by the employer to the extent possible, but not indicate that the investigation will be completely confidential.

(9) Indicates that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken.

(10) Makes clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.

In addition, employers are required to distribute the pamphlet, Sexual Harassment Is Forbidden by Law (DFEH-185), to all employees.  Employers should also routinely discuss the sexual harassment policy with employees at meetings and remind them of the complaint procedures and document these additional steps.  This additional training will show that the company is serious about preventing harassment and took affirmative steps to protect its employees.

4. Trainers conducting the harassment prevention training must meet certain requirements.

A trainer shall be one or more of the following:

  1. “Attorneys” admitted for two or more years to the bar of any state in the United States and whose practice includes employment law under the Fair Employment and Housing Act and/or Title VII of the federal Civil Rights Act of 1964, or
  2. “Human resource professionals” or “harassment prevention consultants” working as employees or independent contractors with a minimum of two or more years of practical experience in one or more of the following: a. designing or conducting discrimination, retaliation and sexual harassment prevention training; b. responding to sexual harassment complaints or other discrimination complaints; c. conducting investigations of sexual harassment complaints; or d. advising employers or employees regarding discrimination, retaliation and sexual harassment prevention, or
  3. “Professors or instructors” in law schools, colleges or universities who have a post-graduate degree or California teaching credential and either 20 instruction hours or two or more years of experience in a law school, college or university teaching about employment law under the Fair Employment and Housing Act and/or Title VII of the federal Civil Rights Act of 1964.

Individuals who do not meet the qualifications of a trainer as an attorney, human resource professional, harassment prevention consultant, professor or instructor because they lack the requisite years of experience may team teach with a trainer, in accordance with 1. through 3. above, in classroom or webinar trainings provided that the trainer supervises these individuals and the trainer is available throughout the training to answer questions from training attendees.

5. Training received from other employers may carry over to new employers.

A supervisor who has received training in compliance with the law during the prior two years either from a current, a prior, an alternate or a joint employer need only be given, be required to read and to acknowledge receipt of, the employer’s anti-harassment policy within six months of assuming the supervisor’s new supervisory position or within six months of the employer’s eligibility. That supervisor shall otherwise be put on a two year tracking schedule based on the supervisor’s last training.  Employers need to be careful however, since the burden of establishing that the prior training was legally compliant rests with the current employer.

Employers need to review their compliance with California’s sexual harassment training requirements on a periodic basis.  When doing so, it is a good time to update policies and remind employees about the company’s policies on a routine basis – not just when a complaint is made.  This Friday’s Five provides reminders about sexual harassment training and dealing with complaints in the workplace:

1.      Employers with 50 or more employees must provide sexual harassment training to all supervisors every two years.

Employers with 50 or more employees must provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees who are employed as of July 1, 2005, and to all new supervisory employees within six months of assuming a supervisory position.  From, all covered employers must provide sexual harassment training and education to each supervisory employee once every two years.  In 2015, California requires that a portion of the training also address “abusive conduct.”

2.      It is recommended that employers provide training to all employees.

All employees should be training about the company’s anti-harassment policy and seriousness of violations of the sexual harassment policy.  Rank and file employees should be encouraged to report any harassment or inappropriate conduct that they see occur in the workplace even though it may not be directed at them.  Encourage employees to help other employees to speak up and make the company aware of inappropriate conduct so that the company can take effective measures to stop the conduct.

3.      Employers should have a compliant policy and complaint procedure.

All employers should have an anti-harassment policy of their own developed and distributed to all employees.  In addition, employers are required to distribute the pamphlet, Sexual Harassment Is Forbidden by Law (DFEH-185), to all employees.  Employers should also routinely discuss the sexual harassment policy with employees at meetings and remind them of the complaint procedures and document these additional steps.  This additional training will show that the company is serious about preventing harassment and took affirmative steps to protect its employees.

4.      Investigate all complaints.

Employers are liable for harassment when it knows or should have known that harassment has occurred.  Therefore, employers should take immediate and appropriate action when they become aware of any potential harassment taking place in their workplace.  An employer must take effective action to stop any further harassment and to minimize any effects of the harassment. The investigation should fully inform complainant of his/her rights.  In addition, the investigation must be immediate, thorough, objective and complete.  All witnesses and anyone with information on the matter should be interviewed.  A final determination must be made and the results communicated to the complainant, to the alleged harasser, and, as appropriate, to all others who have a need to know.

If the investigation determines that harassment occurred, the company must take prompt and effective remedial action.  These steps would include taking appropriate action against the harasser, and keep the complainant informed of these steps.  In addition, the employer must take steps to prevent further harassment.

5.      Protect employees who complain against retaliation.

Employers must take steps to prevent retaliation against any employee who complains about harassment.  This even applies if the employer determines that the complaint was unfounded, the fact that a complaint was made is a protected activity.  Employers should remind the complainant of the anti-retaliation policy and have the employee report any perceived retaliation to the appropriate person in the company.  In addition, the employer should remind the person against who the complaint was made that there cannot be any retaliation against the complainant.  The employer may consider separating the two people involved in the situation to avoid any retaliation claims.