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Harassment--Investigative Standards

An Adequate Sexual Harassment Investigation

Based on my review of case law, my inspection of professionally completed investigations, and based on input from H.R. experts, I believe investigative reports of sexual harassment charges should follow the following standards [as adopted by the University of California]:

  • The individual(s) accused of conduct violating the Policy on Sexual Harassment shall be provided a copy of the written request for Formal Investigation or otherwise given a full and complete written statement of the allegations, and a copy of the Policy on Sexual Harassment and Procedures for Responding to Reports of Sexual Harassment.
  • The individual(s) conducting the investigation shall be familiar with the Policy on Sexual Harassment and have training or experience in conducting investigations.
  • The investigation generally shall include interviews with the parties if available, interviews with other witnesses as needed, and a review of relevant documents as appropriate. Disclosure of facts to parties and witnesses shall be limited to what is reasonably necessary to conduct a fair and thorough investigation. Participants in an investigation shall be advised that maintaining confidentiality is essential to protect the integrity of the investigation.
  • Upon request, the complainant and the accused may each have a representative present when he or she is interviewed. Other witnesses may have a representative present at the discretion of the investigator or as required by applicable University policy or collective bargaining agreement.
  • At any time during the investigation, the investigator may recommend that interim protections or remedies for the complainant or witnesses be provided by appropriate University officials. These protections or remedies may include separating the parties, placing limitations on contact between the parties, or making alternative working or student housing arrangements. Failure to comply with the terms of interim protections may be considered a separate violation of the Policy on Sexual Harassment.
  • The investigation shall be completed as promptly as possible and in most cases within 60 working days of the date the request for formal investigation was filed. This deadline may be extended on approval by a designated University official.
  • Generally, an investigation should result in a written report that at a minimum includes a statement of the allegations and issues, the positions of the parties, a summary of the evidence, findings of fact, and a determination by the investigator as to whether University policy has been violated. The report also may contain a recommendation for actions to resolve the complaint, including educational programs, remedies for the complainant, and a referral to disciplinary procedures as appropriate. The report shall be submitted to a designated University official with authority to implement the actions necessary to resolve the complaint. The report may be used as evidence in other related procedures, such as subsequent complaints, grievances and/or disciplinary actions.
  • The complainant and the accused shall be informed promptly in writing when the investigation is completed. The complainant shall be informed if there were findings made that the policy was or was not violated and of actions taken to resolve the complaint, if any, that are directly related to the complainant, such as an order that the accused not contact the complainant. In accordance with University policies protecting individuals' privacy, the complainant may generally be notified that the matter has been referred for disciplinary action, but shall not be informed of the details of the recommended disciplinary action without the consent of the accused.
  • The complainant and the accused may request a copy of the investigative report pursuant to University policy governing privacy and access to personal information. However, the report shall be redacted to protect the privacy of personal and confidential information regarding all individuals other than the individual requesting the report in accordance with University policy.

What If the Investigation Does Not Occur or Does Not Meet These Standards?

  • The Employer may be liable for breach of a statutory duty to promptly investigate and correct complaints of harassment.
  • The Employer may be liable for negligently failing to protect the complaining employee from further harassment and discrimination by a non-supervisory co-employee.
  • The Employer may be denied the opportunity to assert an affirmative defense in court that it did not know of harassment of a supervisor when a prompt and adequate investigation based on the original complaint would have uncovered the scope of the problem.
  • The Employer may be deemed to have ratified or adopted the actions of an employee or supervisor by its conscious failure to investigate adequately.
  • The Employer may be liable for retaliation by a co-employee or supervisor because it fails to take action to prevent the retaliation.
  • The Employer may be liable for punitive damages if the decision to not investigate adequately was by a Human Resources Executive Officer who is deemed to have "consciously disregarded" the complaining employee's rights to be free of discrimination and harassment.

What You Can Do.

  • An investigative report of harassment should be considered part of your personnel file according to the CA Div. of Labor Standards Enforcement, and therefore available for inspection. See Lab. Code Sec. 1198.5 and the "Personnel Records" Posting on this Web Site. Therefore, ask 1) if a report was made, and if not why not? and 2) to inspect the report with private information redacted (removed or blocked) from the report.
  • If you believe an inadequate or non-existent investigation was conducted, then carefully document all additional discrimination and harassment taking place after your complaint, especially if you believe you are being "singled out" for retaliatory treatment because of the original complaint. The employer's failure to investigate and act will expose the employer to liability for failure to stop this retaliation.
  • If conditions become intolerable to you [and would be intolerable to a reasonable, objective person in your circumstances] you may be legally justified in quitting your employment after notifying your employer of such conditions, with no corrective action being taken. [I suggest you seek medical counsel first on whether continued employment is injurious to your mental and physical health]. Quitting under these circumstances may be considered a forced resignation or "constructive termination". Generally, a person leaving in these circumstances does not give "two weeks" notice, but quits immediately to avoid further injury.
  • You may want to consult with legal counsel while still employed and enduring the continuing harassment in order to assess the best next step in addressing the problem.

Employee Rights Attorney Frank Pray

5160 Campus Drive

Newport Beach CA 92660

949.251.1006

877.job.atty


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