Workplace violence prevention is increasingly recognized as one of many employer responsibilities for the safety and health of their employees. Different jurisdictions have focused on different types and degrees of “violence” – from deadly attacks to workplace rudeness and bullying. California has been a leader among U.S. jurisdictions. The state requires private employers with more than 50 employees, and all public employers, to train managers and supervisors at least every two years in how to avoid and prevent sexual harassment. Since 2015, this training must include “abusive conduct.”Last year, the state Department of Fair Employment and Housing (DFEH) adopted a requirement that employers with five or more employees create detailed written policies for preventing harassment, discrimination, and retaliation. This month, DFEH issued detailed guidance addressing these anti-harassment requirements. These new guidelines should be required reading for California employers, and non-California employers should take the opportunity to compare their own efforts against these recommended best practices.
What Are California’s Harassment Prevention Requirements?
Effective April 1, 2016, DFEH regulations require California employers with five or more employees to create detailed written policies for preventing harassment, discrimination, and retaliation. DFEH claims finds authority for this requirement in the state Fair Employment and Housing Act (FEHA) prohibitions against discrimination, harassment and retaliation, and in FEHA’s requirement that employers “take reasonable
steps to prevent and correct wrongful (harassing, discriminatory, retaliatory) behavior in the workplace.”
Anti-harassment policies must do all of the following:
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List all protected groups under FEHA.
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Allow employees to report to someone other than a direct supervisor.
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Instruct supervisors to report all complaints.
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State that all complaints will be followed by a fair, complete and timely investigation.
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State that the employer will maintain confidentiality to the extent possible.
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State that remedial action will be taken if any misconduct is found.
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State that employees will not be retaliated against for complaining or participating in an investigation.
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State that supervisors, co-workers, and third-parties are prohibited from engaging in unlawful behavior under FEHA.
What Does the New Guidance Advise?
The new guidance includes several sections.
- What does an effective anti-harassment program include?
DFEH advises that a clear and effective program must include all of the following:
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A clear and easy to understand written policy, regularly distributed to employees and discussed at meetings on a regular basis (e.g., every six months).
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Buy in from the top. “This means that management is a role model of appropriate workplace behavior, understands the policies, walks the walk and talks the talk.”
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Training. Training for supervisors and managers (as mandated by state law), and specialized training for complaint handlers (more below).
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Policies and procedures for responding to and investigating complaints (more below).
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Prompt, thorough and fair investigations of complaints (more below).
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Prompt and fair remedial action (more below).
- What constitutes an effective and fair investigation?
The employer’s first step is to determine whether a reported incident warrants an investigation. DFEH points out that minor incidents, “such as an offhand comment,” might be resolvable by counselling. But if the incident would violate workplace rules if true, an investigation should be conducted. Any investigation should be “fair” (DFEH mentions the lawyerly phrase “due process”), and advises that practical steps to ensure fairness include:
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Conduct a thorough interview with the complaining party, preferably in person and as the first step in the investigation. Investigations can be conducted based on anonymous complaints, but this may require workplace surveys or other evaluations of the general workplace environment.
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Give the accused party a chance to tell his/her side of the story, preferably in person. DFEH points out that an accused party is entitled to know the allegations being, but that these should come out in the course of the interview rather than before the interview. The investigator should ensure that the allegations and response are both clear. It may or may not be necessary to disclose the identity of the complaining party.
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Interview relevant witnesses and review relevant documents. The investigator should exercise discretion but interview any witness whose information could impact the findings of the investigation, and attempt to gather any documents that could reasonably confirm or undermine the allegations or the response.
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Do other work that might be necessary to get all the facts (visit the work site, view videotapes, take pictures, etc., as appropriate).
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Reach a reasonable and fair conclusion based on information collected, reviewed and analyzed during the investigation.
DFEH also counsels employers to consider the following issues during investigations:
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Consider how much information, including the identity of the complainant, can be kept confidential, since the investigator may need to disclose or discuss information that the accused party or other co-workers may be able to trace back to individuals.
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Consider how narrowly to draw circles around “need to know.”
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Attempt to begin, conduct, and conclude the investigation as promptly as is reasonably feasible.
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Ensure impartiality, and consider whether an investigator may provide an impression of bias (e.g., if the investigator is known to be a friend of one party)
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Ensure the investigator is qualified, including training, skills and/or experience in conducting investigations. The organization may need to use an outside investigator to meet this goal.
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Avoid questioning that will be perceived as cross-examination, by asking open-ended questions to elicit the parties’ information.
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Consider how credibility is evaluated and compared, particularly in “he said, she said” situations where concrete external evidence may be unavailable.
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Establish the “burden of proof”, both in terms of the level or confidence necessary to reach a determination and make workplace decisions (including disciplinary action). DFEH recommends the “preponderance of the evidence” standard (i.e, a conclusion is “more likely than not”), rather than stricter “clear and convincing evidence” or “beyond a reasonable doubt.”
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Seek to reach factual conclusions, not legal conclusions. It may be appropriate to determine if an internal organizational standard has been violated, but DFEH advises against legal conclusions that a law or regulation has been violated.
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Ensure effective remedial measures, if appropriate.
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Prepare and maintain detailed documentation, of interviews, gathered information, and reported conclusions and recommendations.
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Do not forego an investigation just because the target of harassment asks the employer not to do anything.
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Be willing to conduct investigations based on anonymous complaints, but be sure to structure such investigations appropriately.
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Guard against retaliation, by the organization and by individuals.
Self-Assessment Checklist
Does the organization have anti-harassment policy(ies) and procedure(s) in place?
Do they include elements that satisfy California DFEH requirements (mandatory in California, and best practices elsewhere)?
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Clear and understandable written policy?
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Demonstrated buy-in by Management?
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Training?
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Policies and procedures for responding to and investigating complaints?
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Prompt, thorough and fair investigations of complaints?
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Prompt and fair remedial action?
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Documentation and record keeping?
Has the organization ever applied its policy(ies) and procedure(s)?
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Routine training?
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Receipt of complaint of harassment?
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Investigation of complaint, leading to formal conclusion and remedial action if appropriate?
Where Can I Go For More Information?
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California DFEH Sexual Harassment FAQ page
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DFEH Workplace Harassment Guide for California Employers (5/17)
Specialty Technical Publishers (STP) provides a variety of single-law and multi-law services, intended to facilitate clients’ understanding of and compliance with requirements. These include:
About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 25 years. He was involved in developing 13 existing products, including Environmental Compliance: A Simplified National Guide and The Complete Guide to Environmental Law.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: tei@ix.netcom.com