Navigating Harassment Claims: A Guide for California Employers

In this article, you can discover…

• How workplace harassment is defined in California
• How to properly investigate a harassment complaint in your business
• How an attorney can help you navigate an employee’s harassment claim

What Is The Legal Definition Of Workplace Harassment In California?

Legally, workplace harassment in California falls into two main categories: “quid pro quo” or “hostile work environment”. “Quid pro quo” means “something for something” in Latin, and usually refers to an employee receiving requests for sexual favors in exchange for a promotion, better hours, or continued employment.

“Hostile work environment” harassment occurs when there are unwelcome comments or behavior that focus on a worker’s “protected class”. This “protected class” could be the employee’s sex, pregnancy, race, religion, national origin, ancestry, disability, medical condition, age, gender, gender identity, gender expression, sexual orientation, marital status and military/veteran status.

Most “hostile work environment” claims center around unwelcome sex-based comments or behavior from the opposite sex, though same-sex harassment also occurs.

To be classed legally as “harassment” this behavior must be unwelcome and result in an intimidating, hostile, or offensive work environment. The conduct must be “severe” or “pervasive.” A single, extreme event (physical touching/groping) might meet the severity requirement; many smaller events (looks/leering, comments, jokes, playing offensive music, standing close, placing hands on shoulders or around the waist) that occur regularly over time can be pervasive.

Workplace harassment does not include being disciplined by one’s manager, nor does it include being micromanaged or held to strict professional standards in the workplace.

How Can I Foster An Environment With Less Risk For Workplace Harassment?

As an employer, it’s wise to implement a policy where no conduct may occur which could be described as romantic or sexual in nature, or based on any other protected category.

This would include

• No sex-based jokes/comments (or based on a protected category)
• No comments about appearance or clothing
• No placing hands or arms on shoulders
• No hugging

This creates a very G-rated work environment, but helps ensure that recipients as well as onlookers are not offended in ways that could make the work environment hostile for them.

What Steps Should An Employer Take When They Receive A Harassment Complaint?

The first thing to do is to obtain all relevant information from the complaining party, preferably in writing though a written statement cannot be required, as soon as possible. The information should be detailed setting forth all material allegations of the complaint and should identify documents and witnesses, if any.

You must then conduct a prompt, thorough, and unbiased investigation that gives due process to the accused to determine whether harassment has occurred.

Attorney Scott Shibayama is a dedicated employment and labor lawyer serving California. For over 25 years, he’s helped businesses just like yours navigate harassment claims, conduct meaningful and helpful investigations, and create a better and safer work environment.

Uncertain of how to handle employee harassment claims? Have questions or need guidance? Reach out to Vision Law at (855) 534-1490 for an initial consultation today.

Call For A Free Consultation - (855) 534-1490.

How Should An Employer Go About Investigating A Harassment Claim?

The first step you should take as an employer is to decide who will conduct the investigation. In-house managers can often be biased in favor of or against an accused person or an accuser, however, it’s critical to keep the investigation objective and fair.

As a result, many companies will hire a third-party lawyer or human resources professional to conduct workplace investigations. This can be expensive. An employer must weigh the cost versus the benefit whether to hire an independent third-party investigator or to handle the investigation in-house.

This investigator acts as a fact-finder to determine if the allegations in the harassment complaints are more likely than not true. This will involve careful interviews with witnesses, an evaluation of the consistency of witnesses’ stories, and determining if statements can be corroborated with other evidence or information.

Once the investigator has reached a conclusion, they draft a report setting forth the investigative process, all evidence gathered and the conclusions reached. You and your management team can then use the findings in the report to take appropriate corrective action, if any.

What Should I Not Do When Investigating A Harassment Claim?

Never sit on a complaint. A key requirement for lawful investigations is that they be “prompt.” Take each complaint seriously, and make it a top priority until the investigation process is completed.

Neglecting or ignoring possible evidence is quite damaging. Identify all material witnesses and documents. Failing to do so can lead to erroneous conclusions, unsupported conclusions, or a situation where the investigator struggles to reach any conclusion.

Ignoring factual gaps in witness interviews is unacceptable. Witness interviews should make sense and tell cohesive and consistent stories. Make sure your questioning is detailed and complete and meant to get to the truth in a pointed manner. Know the difference between a conclusion and the factual basis for a conclusion.

Failing to draw reasonable conclusions based on the facts. The job of the investigator is to make factual determinations whether the complainant’s allegations are (more likely than not) true. In most investigations this means weighing the credibility of the accuser and the accused. Where the stories are diametrically opposed, it is fatal to say both the accuser and the accused were equally credible, throw up your hands and say there is nothing you can do. The investigator must make hard calls and conclude who is to be believed.

How Soon Should An Employer Contact An Attorney After Receiving A Harassment Claim From Their Employee?

Be sure to contact an experienced employment and labor lawyer immediately upon receiving a harassment claim from an employee. Many employers lack the knowledge and experience to conduct a lawful workplace investigation that will stand up in court. This results in analysis paralysis and a delayed and/or botched harassment investigation.

Harassment claims can be complex and often distill to “he said she said” conflicts in evidence where a credibility assessment must be made. In addition to advising on the process of the investigation, a lawyer can help with credibility determinations.

Certainly harassment allegations can be damaging to your business’ and to your professional reputation if handled poorly.

Before the investigation into the harassment even begins, make sure you have an astute and seasoned attorney on your side to help you handle things in a professional and lawful manner.

For more information on Navigating Harassment Claims In California, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (855) 534-1490 today.