What Does the New Workplace Harassment Guide for California Employers Mean For Your Business?

Back Web Only Jul 27, 2017 By Marcus L. Turner

Watch any news channel, listen to any talk radio station or read virtually any online news or social media feed, and chances are, you’ll learn about a new lawsuit being filed against a company based on allegations of harassment, discrimination or retaliatory conduct in the workplace. ​These serious claims have become far too prevalent, and they’re coming to light in all areas of the workforce. From public agencies and educational institutions, to Fortune 100 companies and media giants, to small businesses — all businesses are at risk.

California employers have a legal obligation to take reasonable steps to prevent and correct wrongful (meaning harassing, discriminatory or retaliatory) behavior in the workplace, but while most are aware of this obligation, many employers are uncertain of how to comply. This uncertainty is understandable; a failure to prevent and correct wrongful behavior can expose employers to significant legal risk. Although employers’ obligations might seem straightforward, if not adhered to properly, they can arm a plaintiff’s attorney with enough legal ammunition to turn the simplest of claims into an employer’s nightmare.   

On May 2, the California Department of Fair Employment and Housing released its Workplace Harassment Guide for California Employers (available for downloading at www.dfeh.ca.gov), which was produced to provide guidance to employers on how to comply with their obligations. While offered as a guide, employers need to pay careful attention to its content. This 9-page guide will undoubtedly become an additional roadmap for plaintiffs’ counsel to strengthen and advance their positions against employers.

Here are just a few of the ways the guide may be used against employers facing claims of harassment.

The new guide sets forth what an effective anti-harassment program contains, including a clear and easy-to-understand written policy that is distributed to employees and discussed at meetings held at least once every six months. Employers should anticipate being deposed on questions that attempt to show that the employer’s written policies were confusing. The plaintiff lawyers can infer that the company did not take them seriously, because they were not openly discussed in meetings held on a regular basis.

The guide states that the program needs “buy in from the top,” meaning that management must be a role model, and should understand and abide by the policies. Employers need to walk the walk and talk the talk.

The guide also addresses what an employer should do when receiving a report of harassment or other wrongful behavior. Employers are advised to give it top priority and determine whether it is serious enough that the employer conduct a formal investigation. Per the guide, if there are allegations of conduct that, if true, would violate the employers’ rules or expectations, the complaint needs to be investigated. If an investigation is performed, the guide will likely be used as a template to test the validity of the investigation.

Expect depositions to be focused on topics such as:

Was the proper investigator selected? The guide provides insight into the necessary qualifications and training of investigators.

Was the investigation initiated promptly after the employer knew or should have known of the harassment? The guide provides helpful information related to the timeliness of the investigation, its thoroughness and how to ensure the investigation is fair to all parties. Company examples are provided related to setting up timelines for investigating based on the seriousness of the complaint. For example, if the allegation involves claims of physical harassment or a threat of violence, it needs to be acted on the same day the complaint is received. If the allegation is not urgent, many companies make it a point to contact the complaining party within a day or two and strive to finish the investigation in a few weeks.

Was the investigation impartial? Report findings should be based on an objective weighing of the evidence collected, and understand that the integrity of the findings is at risk if there is any investigator bias (even a perception of bias). The guide explains that a perception of bias by the investigator will discourage open dialogue with all involved parties.

Were the remedial actions adequate? Even if the investigation was solid, expect the claimant’s focus to turn to whether the employer’s remedial action was adequate. An employer must take appropriate remedial steps when there is proof of misconduct — and the behavior does not always need to rise to the level of a policy violation or the law to warrant a remedy.  Remember, an employer’s legal obligation is to take reasonable steps to prevent and correct unlawful behavior. Once an employer has determined that harassment or discrimination has occurred, the employer must halt the harassment and minimize the risk of reoccurrence.  

Various types of corrective actions undertaken by employers have produced different results in court: A few early cases held that an oral instruction from the employer to the perpetrator to refrain from harassing conduct could be sufficient. However, subsequent cases held that the warning was not enough, especially since the warning did not put an end to the harassment. When contemplating a remedial measure, employers need to assess whether it will stop the harassment and be an effective deterrent in the future.

Another common remedy used by employers is separation of the complainant and the harasser. However, in certain situations courts have found if harassers are not completely removed from the workplace, then their mere presence can create a hostile work environment. In certain circumstances, firing the perpetrator may be an appropriate response, and the employer’s failure to do so may be considered inadequate remediation.

An employer handling a claim of wrongful conduct has many decisions to make, each with its own advantages, disadvantages and legal consequences. The minimum takeaway for employers is simple, though: Thoroughly acquaint yourself with the state’s new guide, and if a claim of harassment, discrimination or other wrongful conduct lands on your desk, seek counsel immediately — because the consequences can be devastating.