The allegations of sexual harassment and assault levied against Hollywood producer Harvey Weinstein have been front page news for the last week.  The board of directors of his company swiftly voted to terminate his employment, but only time will tell what impact Mr. Weinstein’s transgressions (and alleged criminal activity) will have on his former company.  If any of Mr. Weinstein’s accusers ultimately file suit against him and his former employer, the extent to which the company failed to comply with its legal obligations to prevent sexual harassment could affect the liability of the company.

The time to ensure your agency’s anti-harassment policies and procedures are complete and legally compliant is now – before the agency is faced with a harassment complaint.

Is Your Agency’s Harassment Prevention Policy Complete?

Department of Fair Employment and Housing Regulations that became effective on April 1, 2016 set forth new requirements regarding employer policies with respect to the prevention of harassment, discrimination, and retaliation. The new laws require employers to have a policy that:

  • Is in writing;
  • Lists all current protected categories covered under the Fair Employment and Housing Act (“FEHA”);
  • Indicates that the law prohibits co-workers, third parties, supervisors, and managers from engaging in conduct prohibited by the Act;
  • Sets forth a complaint process that ensures complaints receive:
    • Employer confidentiality, to the extent possible;
    • A timely response;
    • Impartial and timely investigations by qualified personnel;
    • Documentation and tracking for reasonable progress;
    • Appropriate options for remedial actions and resolutions; and
    • Timely closures
  • Provides a complaint process that does not require an employee to complain directly to his or her supervisor, by providing additional avenues to lodge complaints, such as:
    • Direct communication with a designated representative, Human Resources manager, EEO officer, other supervisor, or ombudsperson;
    • A complaint hotline; and/or
    • A referral to the EEOC and DFEH
  • Instructs supervisors to report misconduct or complaints of misconduct to a designated representative or a Human Resources manager;
  • Indicates that, upon receipt of a complaint, the employer will conduct a fair, timely, and thorough investigation that provides all parties with due process and reaches reasonable conclusions based on the evidence collected;
  • States that the employer will keep the complaint and investigation confidential to the extent possible;
  • Indicates that appropriate remedial measures will be taken if, at the end of the investigation, misconduct is found; and
  • Makes clear that employees will not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.

What Should a Supervisor Do When He or She Receives a Report of Harassment?

Though every situation is unique, there are some general actions supervisors should always take when a complainant or witness raises allegations of harassment.  The supervisor should:

  • Make no judgments as to whether the conduct reported is minor or severe;
  • Assure the complainant or the witness that someone will follow up promptly according to the agency’s policy;
  • Take notes and read them back to the complainant or witness to confirm accuracy;
  • Inform the complainant his or her complaint cannot be held in complete confidence, but will only be shared with those who need to know so the agency can conduct a thorough investigation and impose discipline, if appropriate, based on the results of the investigation;
  • Notify Human Resources and the appropriate administrator; and
  • Document date and time of report to Human Resources and appropriate administrators consulted.

When Is An Investigation Required?

The FEHA requires employers to take all reasonable steps necessary to prevent harassment in the workplace, which includes investigating complaints of harassment.  An employer should take every complaint seriously.  That means an agency must conduct an investigation whenever a complaint of harassment is made, even if the complaint appears to have no merit whatsoever.

Employers should not wait for a formal complaint.  Knowledge of possible harassment, via talk in the workplace or observations, is sufficient to trigger a prompt investigation of the situation.  In addition to an explicit complaint of harassment, an investigation may also be triggered when:

  • A person, other than the aggrieved person, complains about harassment;
  • Someone indicates that inappropriate conduct is occurring, even if the word “harassment” is not used; and/or
  • A supervisor personally observes inappropriate conduct or language, or has general knowledge of a potentially hostile work environment.

Finally, occasionally an individual who reports harassment will request that the employer do nothing.  Honoring such a request could place other employees at risk for harassment and could place the public agency at risk for failure to investigate and failure to take prompt remedial action. An employer must investigate once it is on notice of an alleged occurrence of harassment, even if the complainant requests that the employer “do nothing” or not investigate. The employer should therefore advise the complainant that it will investigate the complaint, but it should also elicit and address any specific concerns that the complainant has regarding an investigation.  The investigation should proceed even when the alleged victim or other complainant does not request or consent to an investigation.

It is critical for every agency to have a legally-compliant harassment prevention policy, as well as clear procedures to manage reports of conduct that may violate the agency’s policy.  If you are concerned that your agency’s policies or procedures are not adequate, legal counsel can help ensure you are prepared and in compliance with all applicable laws.