Hunton Employment & Labor Perspectives

California’s Fair Employment and Housing Act (“FEHA”) not only prohibits discrimination, harassment and retaliation, but goes a step farther than similar state laws in its explicit requirement that employers take reasonable steps to prevent and correct such conduct.  Cal. Gov’t Code § 12940(k).  In 2016, the California Fair Employment and Housing Council promulgated regulations which set forth the required elements of a compliant prevention and correction program (2 CCR §§ 11023-11024), and in May 2017 the California Department of Fair Employment and Housing (“DFEH”) issued a Workplace Harassment Guide (the “Guide”) to clarify further employers’ obligations under these regulations.  The Guide, which is notable for its detailed explanation of workplace investigation procedures, can be accessed here. 

The core elements of the workplace anti-harassment program described in the Guide are “a clear and easy to understand written anti-harassment policy” that is regularly distributed and discussed in the workplace; a minimum of two hours of state-mandated anti-harassment training for supervisors and managers; specialized training for complaint handlers; and policies and procedures for prompt, thorough and fair investigations of complaints.  Emphasizing the need for “buy in” from top management, the Guide describes the basic steps required to conduct a fair investigation, including an appropriately prompt time frame, and addresses the nuanced issues associated with the confidentiality of the investigation.

Although the Guide emphasizes that investigators are fact-finders and should not reach legal conclusions, it recommends that investigation findings be based on a “preponderance of the evidence” standard, described as “more likely than not” or “fifty percent plus a feather.”   It notes that internal investigators may reach conclusions as to whether complained-of behavior violated a company policy, but this is a different standard than violating the law.

Stressing the need for impartiality in an investigation, the Guide suggests the investigator be “knowledgeable about standard investigatory practices,” including appropriate questioning techniques (such as the use of open-ended questions) and appropriate methods of documenting interviews.  To provide context for the investigation, the investigator should be familiar with laws and policies relating to harassment.  If the employer uses an external investigator, that person must be a licensed private investigator under California Business and Professions Code §§ 7520 et seq., or an attorney acting in his or her capacity as an attorney.  The Guide provides some information about sources of training for investigators, such as human resources-related organizations, enforcement agencies, and other vendors.

Of particular interest are the guidelines for making credibility determinations, often necessary in “he said/ she said” situations.  The Guide sets forth nine “credibility factors” to be used in evaluating witness testimony: (1) inherent plausibility (whether the story holds together); (2) bias or motive to lie;  (3) whether there is corroboration of the account of events; (4) whether or not the witness was in a position to observe events first-hand; (5) a history of honesty or dishonesty on the part of the witness;  (6) a person’s known habits or consistent behavior; (7) inconsistent statements; (8) manner of testimony, including hesitations of speech and indirect answers; and (9) the witness’s demeanor (with the caveat that this factor should be applied with caution, as “most people cannot effectively evaluate truthfulness from an individual’s demeanor).

Finally, in a discussion of appropriate remedial measures, the Guide emphasizes that remedial steps must be taken when there is proof of misconduct – “the behavior does not need to rise to the level of a policy violation or the law to warrant a remedy.”  Such measures will satisfy the employer’s proactive obligation to prevent unlawful behavior, not just react to it after the fact.

It is important to note that, unlike the regulations issued last May,  the Guide is just that: “guidance” from the State of California.  It is not mandatory, but rather represents the State’s views on best practices for workplace harassment investigations. Employers should consult with legal counsel about the costs and benefits of following these guidelines, and about the best way to implement any discrimination and harassment prevention programs.