CALIFORNIA DEPARTMENT OF FAIR EMPLOYMENT AND

DFEH – WORKPLACE HARASSMENT GUIDE FOR CALIFORNIA EMPLOYERS Page 1

ALIFORNIA DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING WORKPLACE

HARASSMENT PREVENTION GUIDE FOR CALIFORNIA EMPLOYERS

California law (called the Fair Employment and Housing Act or FEHA) prohibits

discrimination, harassment and retaliation. The law also requires that employers “take reasonable

steps to prevent and correct wrongful (harassing, discriminatory, retaliatory) behavior in the

workplace (Cal. Govt. Code §12940(k)). The Department of Fair Employment and Housing

(DFEH) is the state’s enforcement agency related to the obligations under the FEHA.

California’s Fair Employment and Housing Council (FEHC) enacted regulations in 2016

to clarify this obligation to prevent and correct wrongful behavior. This document was produced

by the DFEH to provide further guidance to California employers.

WHAT DOES AN EFFECTIVE ANTI-HARASSMENT PROGRAM INCLUDE?

• A clear and easy to understand written policy that is distributed to employees and

discussed at meetings on a regular basis (for example, every six months). The

regulations list the required components of an anti-harassment policy at

2 CCR

§11023.

• 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.

• Training for supervisors and managers (two-hour training is mandated under two laws

commonly referred to as AB 1825 and AB 2053, for more information on this see

DFEH training FAQs).

• Specialized training for complaint handlers (more information on this below).

• Policies and procedures for responding to and investigating complaints (more

information on this below).

• Prompt, thorough and fair investigations of complaints (see below).

• Prompt and fair remedial action (see below).

DFEH – WORKPLACE HARASSMENT GUIDE FOR CALIFORNIA EMPLOYERS Page 2

IF I RECEIVE A REPORT OF HARASSMENT OR OTHER WRONGFUL BEHAVIOR, WHAT

SHOULD I DO

You should give it top priority and determine whether the report involves behavior that is serious

enough that you need to conduct a formal investigation. If it is not so serious (for example, an

employee’s discomfort with an offhand compliment), then you might be able to resolve the issue

by counseling the individual. However, if there are allegations of conduct that, if true, would

violate your rules or expectations, you will need to investigate the matter to make a factual

determination about what happened. Once your investigation is complete, you should act based

on your factual findings.

An investigation involves several steps and you need to consider a variety of issues before you

begin your work. The following section will address many of those issues.

WHAT ARE THE BASIC STEPS REQUIRED TO CONDUCT A FAIR INVESTIGATION?

A phrase that you might see related to investigations is “due process.” Due process is

simply a formal way of saying “fairness” – employers should be fair to all parties during an

investigation. From a practical perspective, this means:

• Conduct a thorough interview with the complaining party, preferably in person.

Whenever possible, the investigation should start with this step.

• Give the accused party a chance to tell his/her side of the story, preferably in person. The

accused party is entitled to know the allegations being made against him/her, however it

is good investigatory process to reveal the allegations during the interview rather than

before the interview takes place. It may not be necessary to disclose the identity of the

complaining party in some cases. Due process does not require showing the accused party

a written complaint. Rather, it means making the allegations clear and getting a clear

response.

• Relevant witnesses should be interviewed and relevant documents should be reviewed.

This does not mean an investigator must interview every witness or document suggested

by the complainant or accused party. Rather, 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 to the allegations.

• Do other work that might be necessary for you to get all the facts (perhaps you need to

visit the work site, view videotapes, take pictures, etc.).

• You should reach a reasonable and fair conclusion based on the information you

collected, reviewed and analyzed during the investigation.

DFEH – WORKPLACE HARASSMENT GUIDE FOR CALIFORNIA EMPLOYERS Page 3

DO I HAVE TO KEEP ALL INFORMATION FROM AN INVESTIGATION CONFIDENTIAL?

You need to look at confidentiality from two sides – the investigator’s and the

employees’. The first question is how confidential the investigator (internal or external) will keep

the information obtained; the second is whether an employer can require that employees keep

information confidential.

• Can the investigator keep the complaint confidential?

The short answer is no. Employers can only promise limited confidentiality – that the

information will be limited to those who “need to know.” An investigator cannot promise

complete confidentiality because it may be necessary to disclose information obtained during the

investigation in order to complete the investigation and take appropriate action. It is not possible

to promise that a complaint can be kept entirely “confidential” for several reasons:

1. If the complaint is of potential violation of law or policy, the employer will need to

investigate, and in the process of investigating it is likely that people will know or assume

details about the allegations, including the identity of the person who complained. This is

true even when the name of the complainant is kept confidential since allegations are

often clear enough for people to figure out who complained about what.

2. The individual receiving the complaint will usually have to consult with someone else at

the company about what steps to take and to collect information about whether there have

been past complaints involving the same employee, etc. That means the complaint will be

discussed with others within the organization.

3. The company may need to take disciplinary action. Again, while the identity of the

person who brought the complaint may in some cases be kept confidential, the complaint

itself cannot be.

• Can I tell employees not to talk about the investigation?

This is a complicated issue. Managers can, and should, be told to keep the investigation

confidential. However there have been court rulings that say it is inappropriate for an employer

to require that employees keep the information secret, since employees have the right to talk

about their work conditions. There are exceptions to this. If you want to require confidentiality,

you might want to check with an attorney about when it is appropriate and how to do so.

HOW QUICKLY DO I NEED TO BEGIN AND FINISH MY INVESTIGATION?

The investigation should be started and conducted promptly, as soon as is feasible. Once

begun, it should proceed and conclude quickly. However, investigators also must take the time to

make sure the investigation is fair to all parties and is thorough. Some companies set up specific

timelines for responding to complaints depending on how serious the allegations are (for

example, if they involve claims of physical harassment or a threat of violence, act the same day

as 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 (although that depends on several factors, including the availability of witnesses).

DFEH – WORKPLACE HARASSMENT GUIDE FOR CALIFORNIA EMPLOYERS Page 4

A prompt investigation assists in stopping harassing behavior, sends a message that the employer

takes the complaint seriously, helps ensure the preservation of evidence (including physical

evidence such as emails and videos, and witnesses’ memories), and allows the employer to fairly

address the issues in a manner that will minimize disruption to the workplace and individuals

involved.

WHAT ARE SOME RECOMMENDED PRACTICES FOR CONDUCTING WORKPLACE

INVESTIGATIONS

IMPARTIALITY

The investigation should be impartial. Findings should be based on objective weighing of

the evidence collected. It is important for the person conducting the investigation to assess

whether they have any biases that would interfere with coming to a fair and impartial finding

and, if the investigator cannot be neutral, to find someone else to conduct the investigation.

Even if investigators determine they can be neutral and impartial, they must evaluate

whether their involvement will create the perception of bias. A perception of bias by the

investigator will discourage open dialogue with all involved parties. For example, in a case in

which the investigator has a personal friendship with the complainant or accused, either actual or

perceived, the investigator may need to recuse him- or herself to avoid the appearance of

impropriety. It is generally a bad idea to have someone investigate a situation where either the

complainant or accused party has more authority in the organization than the investigator.

INVESTIGATOR QUALIFICATIONS AND TRAINING

Qualifications:

The investigator should be knowledgeable about standard investigatory practices. This

includes knowledge of laws and policies relating to harassment, investigative technique relating

to questioning witnesses, documenting interviews and analyzing information. He or she should

have sufficient communication skills to conduct the interviews and deliver the findings in the

written or verbal form. For more complex and serious allegations it is also important for the

investigator to have prior experience conducting such investigations.

For workplace investigations, employers may utilize an employee as an investigator or

hire an external investigator. In instances of harassment allegations, the employee investigator is

often someone from human resources. In California, external investigators (those who are not

employed by the employer) must be licensed private investigators or attorneys acting in their

capacity as an attorney (See Business and Professions Code Section 7520 et seq.)

Training:

There is no one standard training program for workplace investigators. Internal

investigators usually obtain training by professional organizations for HR professionals (such as

The Society for Human Resource Management (SHRM), Northern California Human Resource

Association (NCHRA), Professionals in Human Resource Association (PIHRA), professional

DFEH – WORKPLACE HARASSMENT GUIDE FOR CALIFORNIA EMPLOYERS Page 5

organizations for workplace investigators (such as the Association of Workplace Investigators -

AWI) and enforcement agencies (such as DFEH or EEOC). Many law offices and vendors that

provide harassment prevention training also provide training for investigators. At a minimum,

training should cover information about the law shaping investigation recommended practices,

how to determine scope (what to investigate), effective interviewing of witnesses, weighing

credibility, analyzing information and writing a report. An introductory training program

typically lasts a full day (some training is longer) and includes skill-building exercises.

TYPE OF QUESTIONING

Investigations should not be interrogations. Neither the complainant nor the accused party

should feel they are being cross-examined. Studies have shown that open-ended questions are

better at eliciting information while not causing people to feel attacked. Investigators should ask

open-ended questions on all areas relevant to the complaint to get complete information from the

parties and witnesses.

MAKING CREDIBILITY DETERMINATIONS

Making a determination:

If there is no substantial disagreement about the factual allegations it may not be

necessary to make a credibility determination. However, many investigations require a

credibility determination, including the classic “he said/she said” situation, and it is up to the

investigator to make this determination. An investigator can still reach a reasonable conclusion

even if there is no independent witness to an event. In most cases, if the investigator gathers and

analyzes all relevant information, it is possible to come to a sensible conclusion.

He said/she said situations:

It is not uncommon for there to be no direct witnesses to harassment. Yet there may be

other evidence that would tend to support or detract from the claim. For example, a complainant

who complains about harassment may have been seen to be upset shortly after the event, or may

have told someone right after the event. This would tend to bolster his or her credibility. On the

other hand, it would tend to bolster the accused party’s credibility if the investigator learned that

the complainant complained many months after sexual joking with a supervisor, was just given a

negative performance review, and told a co-worker that he or she could use the joking against the

supervisor in the future. In other cases documents such as emails or texts might bolster or reduce

a witness’s credibility.

Even if there is no evidence other than the complainant’s and accused party’s respective

statements, the investigator should weigh the credibility of those statements and make a finding

as to who is more credible. The investigator can utilize the credibility factors stated below.

DFEH – WORKPLACE HARASSMENT GUIDE FOR CALIFORNIA EMPLOYERS Page 6

Credibility factors:

Credibility factors include the following (these are also referred to in statutes and

enforcement agency guidance):

1. Inherent plausibility – this refers to whether the facts put forward by the party are

reasonable: whether the story holds together. In other words, ask yourself whether it is

plausible that events occurred in the manner alleged.

2. Motive to lie (based on the existence of a bias, interest or other motive) – this refers to

whether a party has a motive to be untruthful.

3. Corroboration – this refers to whether a direct or indirect witness corroborates some or all

of the allegations or response to allegations.

4. Extent a witness was able to perceive, recollect or communicate about the matter – this

refers to whether the witness could reasonably perceive the information reported (in

terms of where they were, what else was happening, etc.)

5. History of honesty/dishonesty. Although investigations are not meant to make character

judgments about the parties (whether they are a “good person”), if an individual is known

to have been dishonest, this can weigh against his/her credibility.

6. Habit/consistency – this refers to allegations of a behavior that someone is known to do

on a regular basis (such as hugging all female employees in greeting).

7. Inconsistent statements – this refers to one individual giving statements that are

inconsistent in a way that is not easily explained.

8. Manner of testimony – such as hesitations of speech and indirect answers (especially

when the witness has given direct answers to foundational questions.)

9. Demeanor – experts caution against using demeanor evidence as most people cannot

effectively evaluate truthfulness from an individual’s demeanor. Demeanor can be used

as a credibility factor, but investigators should apply it with caution and understand the

pitfalls of relying on demeanor when making a finding. To the extent possible, your

conclusions should be based on an analysis of the objective evidence.

URDEN OF PROOF

Investigators should make findings based on a “preponderance of the evidence” standard.

This is the standard that civil courts use in discrimination and harassment cases. This standard is

also called “more likely than not” – the investigator is making a finding that it more likely than

not that the conduct alleged occurred, or more likely than not that it did not occur. Some

workplace investigators make the mistake of applying a higher burden of proof, such as a “clear

and convincing” standard or a “beyond a reasonable doubt” standard. Beyond a reasonable doubt

is the standard used in criminal law, where a defendant is considered innocent until proven guilty

and the consequence of guilt is a loss of freedom. Applying such a standard in a workplace

investigation creates an unrealistic expectation about the level of proof needed to make a

decision. Even a “clear and convincing” standard is a higher standard than should be expected

since it is a higher standard than a civil court would use to determine liability. Some people

describe a preponderance of the evidence standard as “fifty percent plus a feather.”

DFEH – WORKPLACE HARASSMENT GUIDE FOR CALIFORNIA EMPLOYERS Page 7

DO NOT REACH LEGAL CONCLUSIONS

It is considered a recommended practice for investigators to reach factual conclusions,

not legal conclusions. Sometimes, internal investigators will also reach a conclusion regarding

whether behavior did or did not violate a company policy. 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. This means that even if the allegation includes concerns about, for example,

unwanted touching, an investigator should only reach findings about the facts and should not

reach a conclusion about whether there was unlawful (or lawful) conduct.

Conclusions should state, for example:

Mr. Jones says his boss (Mr. Foster) made numerous sexually explicit jokes during

meetings, which Mr. Foster denied. Witness interviews confirm Mr. Jones’s allegations.

Three witnesses recall hearing the jokes at meetings on several occasions. Therefore, a

preponderance of the evidence supports a conclusion that Mr. Foster did tell sexually

explicit jokes at meetings.

Some investigators (typically internal investigators) are also expected to decide whether a

policy was violated. External investigators are usually not asked to make this determination since

the employer is often in a better position to interpret its own rules. In the above example, if the

investigator were to make a policy violation determination the findings would also include:

It is further found that Mr. Foster violated the company’s anti-harassment policy which

prohibits telling sexually-explicit jokes in the workplace.

In the event the investigation does not uncover evidence to support the allegations, the

conclusion should state that fact, such as:

Mr. Jones’s allegations against Mr. Foster are not supported by a preponderance of the

evidence. This is because no witness recalls hearing the jokes described by Mr. Jones,

even though they were present for the meetings in question. These witnesses appeared

credible. They provided consistent information and appeared to have no bias for or

against either party.

DOCUMENTATION

Investigators should carefully and objectively document witness interviews, the findings

made and the steps taken to investigate the matter. Investigators have different methods of

documenting interviews, including taking notes (handwritten or on a computer), drafting

statements for witnesses to sign, obtaining witness statements (written by the witness), or audio

recording. There are pros and cons to each method and any can be acceptable so long as the

information gathered is reliable and thoroughly documented and the documentation is not

altered. It is also advisable to be consistent in the way you decide to document your interviews

(unless there is a good reason to change your usual practice). It is considered a recommended

DFEH – WORKPLACE HARASSMENT GUIDE FOR CALIFORNIA EMPLOYERS Page 8

practice to retain all documentation. Some investigators type up handwritten notes so they are

legible. However, the handwritten notes should also be retained.

SPECIAL ISSUES

What to do if the target of harassment asks the employer not to do anything.

It is rarely appropriate for an employer to fail to take steps to look into a complaint

simply because an employee asks the employer to keep the complaint confidential or says that

he/she will “solve the problem” with no involvement by the company. Indeed, this is one of the

primary reasons why employers should not promise “complete” confidentiality. If the complaint

involves relatively minor allegations and the complainant wants to handle the situation

him/herself, the complainant can be coached as to how to do so, however the employer should

follow up and assure this has occurred and the harassment has stopped. If the allegations are

more serious the employer will need to know if they occurred so that appropriate action can be

taken. In those cases it is not acceptable to have the complainant handle the matter alone.

Investigating Anonymous Complaints

Anonymous complaints should be investigated in the same manner as those with a

complainant who identifies him/herself. The method will depend on the details provided in the

anonymous complaint. If the complaint is sufficiently detailed the investigation may be able to

proceed in the same manner as any other complaint. If the information is more general, the

employer may need to do an environmental assessment* or survey to try to determine where

there may be issues. However, the fact that the complaint is anonymous is not a reason to ignore

the complaint.

* An environmental assessment is a process of finding out what is taking place in the

workplace without focusing on a specific complaint or individual. For example, it might mean

interviewing all the employees in a work group about how they interact, if they have experienced

or witnessed any behavior that has made them uncomfortable, etc.

Retaliation

Complainants and/or those who cooperate in an investigation must be protected from

retaliation. Employers should tell complainants and witnesses that retaliation violates the law and

their policies, should counsel all parties and witnesses not to retaliate, and should be alert to

signs of retaliation. Retaliation can take many forms. In addition to the obvious, such as

terminations or demotions, retaliation could take the form of changes in assignments, failing to

communicate, being ostracized or the subject of gossip, etc.

Retaliation can occur at any time, not only right after an incident is reported or an

investigation is started. It is good practice to check back with a complainant after an

investigation is completed to ensure that the employee is not experiencing retaliation, no matter

whether the allegations were determined to be correct.

DFEH – WORKPLACE HARASSMENT GUIDE FOR CALIFORNIA EMPLOYERS Page 9

IMPLEMENTING EFFECTIVE REMEDIAL MEASURES

The FEHC regulations make it clear that an employer must take appropriate

remedial steps 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. Remember, an employer’s

legal obligation is to take reasonable steps to prevent and correct unlawful behavior. In

order to meet this obligation, an employer should:

• Stop behavior before it rises to the level of unlawful conduct, which is why steps

should be taken even when the behavior is not yet serious enough to violate the law;

• Impose remedial action commensurate with the level of misconduct and that

discourages or eliminates recurrence; and

• Look at what the company has done in the past in similar situations, to avoid claims

of unfair (possibly discriminatory) remedial measures.

Remedial measures can include training, verbal counseling, one-on-one

counseling/executive training, “last chance” agreements, demotions, salary reductions,

rescinding of a bonus, terminations, or anything else that will put a stop to wrongful

behavior.