Complaints of sexual harassment can disrupt a company’s operations, give rise to financial liability, and result in the departure of valued employees. Employers can take steps to reduce the potential for sexual harassment to occur and respond effectively if they receive a complaint of harassment.
Step 1 – Prevention
Employers in California are required to “take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Gov. Code, § 12940(k)). It is worth the effort to take measures that will minimize the risk of sexual harassment in the workplace. Doing so will not only protect your employees, but it may also protect your organization from having to engage in time-consuming investigations and potential litigation.
Providing regular training to employees and making it clear that any form of sexual harassment will not be tolerated reduces the likelihood that harassment will occur within your organization. Because most instances of harassment that result in litigation involve repeated conduct, it is critical for an organization to act immediately once it becomes aware that harassment may have taken place.
- Mandatory prevention training – CA Gov. Code § 12950.1, requires employers of five or more employees to provide one hour of sexual harassment and abusive conduct prevention training to nonsupervisory employees. It also mandates two hours of sexual harassment and abusive conduct prevention training to supervisors and managers. This training must take place within six months of hire or promotion and every two years thereafter. This training can be done individually or in a group setting.
- If your company needs help conducting this training, reach out to experienced employment law attorneys who can help your company create its own compliant training or conduct the training for your employees.
Step 2 – Preparation
Employers should be prepared with effective policies and practices so they can respond appropriately when they receive complaints of harassment.
- Comprehensive anti-harassment policies and procedures – An employer in California is required to “develop and distribute to its employees a harassment, discrimination, and retaliation prevention policy.” (2 CCR § 11023(b))
- Such policies should provide clear reporting procedures, confidentiality for complaints of sexual harassment to the extent possible, impartial investigations, proper documentation of investigations, appropriate options for remedial actions and resolutions, and ensure timely response to complaints. For a full list of anti-harassment policy requirements, see 2 CCR § 11023(b).
- The U.S. Equal Employment Opportunity Commission (EEOC) also has suggestions for small businesses on the content of an effective anti-harassment policy.
- Designate responsibilities in advance – As part of your company’s anti-harassment policy, it is important to designate an individual who will take action with respect to sexual harassment complaints. This person’s responsibilities may include receiving complaints, conducting an investigation, counseling, and preparing a report after the investigation has concluded.
- Staff training – Those who are tasked with responding to sexual harassment complaints should receive the training needed to effectively carry out their responsibilities.
- There may be a benefit to hiring a professional investigator in order to conduct an effective investigation and maintain impartiality. If your company assigns investigative responsibilities to an employee, it is critical to ensure that the employee receives the training needed to competently carry out the investigation.
- Martin Law provides investigation services and training to employees who serve as investigators of sexual harassment claims within their organization.
Step 3 – Carrying Out Effective Reporting, Investigations, and Resolutions
If your company’s policies and procedures are in place and your employees are sufficiently trained on their responsibilities, your company will be ready to respond to complaints of sexual harassment. Here are some tips to keep in mind when going through the process.
- Establish a confidential reporting process.
- Design your company’s reporting process to ensure that the identities of the individuals involved remain confidential.
- Have the correct staff in place to promptly respond to complaints and bring the matters to a conclusion as swiftly as possible without compromising the effectiveness of the response.
- Have an investigation plan in place. An effective investigation plan will likely include the following:
- Determine how to protect the interests of both the accuser and the accused while the investigation is ongoing. This might include separating the accused and the accuser in the workplace or putting the accused on leave during the investigation.
- If you do not have an investigator within the organization, make sure your company has a pre-selected outside investigator. When the need arises, contact the outside investigator promptly to begin the investigation process.
- Take immediate steps to preserve evidence such as CCTV footage or pertinent documentation such as email correspondence and text messages.
- Conduct an investigation. Investigators should:
- Identify witnesses early and schedule interviews as soon as possible so details are not forgotten.
- Review all relevant evidence, including emails, text messages, CCTV footage, and witness statements.
- California’s Fair Employment and Housing Council (FEHC) recommends that “Investigators should make findings based on a ‘preponderance of the evidence’ standard . . . This standard is also called ‘more likely than not’ – the investigator is making a finding that it is more likely than not that the conduct alleged occurred, or more likely than not that it did not occur.” (See California Department of Fair Employment and Housing Workplace Harassment Prevention Guide for California Employers, p. 6).
- California regulators also remind investigators to “reach factual conclusions, not legal conclusions. 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.” (See California Department of Fair Employment and Housing Workplace Harassment Prevention Guide for California Employers, p. 7.)
- Properly document the progress of an investigation, and keep the accuser updated as appropriate.
- Once the investigation has concluded, prepare a report of the findings. Appropriately inform both the accuser and the accused when the investigation has ended.
- After an investigation concludes, take appropriate corrective action and steps to prevent harassment and retaliation.
If you have any questions about setting up an anti-harassment policy or the steps to take after receiving a sexual harassment complaint, the attorneys at Martin Law are available to help you navigate this process.