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What Is the Sexual Harassment Investigation Process?

         Sexual Harassment

Under both federal and state law, most employers in California must adhere to regulations that prohibit discrimination and harassment in the workplace. Employers are required to act when an employee complains about sexual harassment or harassment based on protected categories such as religion, race, age, or disability. According to state law, employers must actively work to stop and rectify any illegal activities.

To handle reports of harassment properly, employers in California must conduct prompt, fair, and thorough investigations. Neglecting this duty can mean the employer is legally liable if the complaining employee decides to sue.

How a California Employer Should Conduct an Unbiased Sexual Harassment Investigation 

Taking early action and investigating the alleged incident is key for organizations to reduce their chances of being held liable in harassment cases. Employers are not expected to oversee every moment of their employees’ interactions, but they are required to honestly investigate each harassment complaint. Not doing this could jeopardize their defense in legal proceedings.

The California Civil Rights Department (formerly known as the Department of Fair Employment and Housing) is responsible for upholding the state’s laws against discrimination and harassment, including those outlined in the Fair Employment and Housing Act (FEHA). The CRD has provided the following steps to help employers carry out a sexual harassment investigation in accordance with the laws.

Assign an Investigator

Every organization needs to have someone in place ready to handle harassment allegations before they arise. This designated investigator or “contact employee” should be specially trained to deal with these sensitive situations.

Employers can use their own staff for the investigation, provided these employees are adequately trained and have experience in investigative procedures. Alternatively, they can hire an external investigator, who needs to be either a licensed private investigator or an attorney. The choice between using internal staff or an outside investigator may depend on the severity and the nature of the complaint.

Although employees can approach any supervisor with their concerns, the chosen investigator, who is usually part of the Human Resources (HR) team, is the primary handler for all complaints, provided there is no conflict of interest. In case of a complaint, the first person contacted should ensure all the involved parties are separated and immediately forward the issue to this designated person for a proper response.

Take Prompt Action

As soon as a complaint is reported, the investigator needs to schedule a meeting with the complainant without delay. Otherwise, the employee might feel that their concerns are not being taken seriously, which could drive them to seek resolution outside the company. Once an employee takes their complaint to a third party (the CRD or court), it becomes much harder for the employer to control the outcome.

Maintain Privacy

When the meeting with the complainant is set up, it should be held in a private and comfortable place where no other employees can overhear or see the discussion. The investigator should also let the complainant know that fairness requires letting the person accused of harassment respond and know the details of the allegations against them. The accuser should understand that the investigator—while remaining discreet—might need to speak with other employees who could have seen something or know something about the incident. 

Interview the Complainant

The interview—and the entire process of investigating sexual harassment cases—must be approached with absolute neutrality and empathy. The investigator must recognize that the employee feels wronged and needs to share their experience. Give them space to express themselves fully, as this is their moment to explain their perspective.

The investigator’s role here is to listen carefully and gather all the necessary details while being patient and attentive. Relying solely on memory can lead to inaccuracies, so there must be a written record of the interview. Detailed notes can form the backbone of the company’s defense if needed later.

When asking questions, it’s useful to return to the basics—the Who, What, When, Where, and Why to get to the core of the allegation:

  • Who is accused of harassment?
  • Who witnessed it?
  • Who else might have relevant information?
  • What exactly happened?
  • What outcome is the complainant hoping for?
  • What was the nature of their relationship with the person accused?
  • What documents support their claims?
  • When and where did the incident take place?
  • Why does the complainant believe this happened?

The answers to these questions will provide a clear picture of the complainant’s account and the context of the incident and lead to any potential witnesses.

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Interview the Respondent

The next step is to interview the person accused of harassment (respondent). This interview follows similar preliminary steps as with the complainant, guided by the who, what, when, where, and why framework to get a clear understanding of what happened.

In some cases, the accused might admit to the behavior described in the complaint. Sometimes, they may argue that their actions were harmless. When there is agreement on what happened but not on the intent, it often is not necessary to bring in witnesses. Instead, decisions on how to address the issue can be made considering the details of the incident and the respondent’s history with the company. If there is disagreement over the facts, however, interviewing witnesses may become necessary.

Finalize the Investigation

The final step is to decide if there was a breach of company policy. This decision relies on how believable the accounts from the involved parties and witnesses are, and whether there is supporting documentation or other forms of evidence.

If the investigator determines that harassment has occurred or that there has been a violation of company policies, the company must take action in the form of disciplinary action, termination of employment, setting new expectations, or providing additional training to prevent future incidents.

Especially critical is the response when the allegations involve physical harassment or threats of violence. In such cases, the employer must respond immediately—on the very day the information is received—to ensure the safety of the workplace and all employees.

Choose an Experienced California Sexual Harassment Attorney to Get the Compensation You Deserve

If you have faced harassment at work, whether it is sexual harassment or based on another protected trait, consult our seasoned California workplace harassment lawyers. At Rubin Law Corporation, attorney Steven Rubin and our legal team have nearly four decades of experience to guide you on how to report the harassment to your employer, assist you through the sexual harassment inquiry process, and aggressively pursue a settlement with the at-fault parties on your behalf. 

If you have already reported the harassment and are worried about how your employer is handling it, it’s not too late to talk to us. We can discuss your legal options, such as filing a complaint with a relevant government agency, or starting a lawsuit if the employer’s investigation does not address the issue or they retaliate against you. Call us at (213) 996-0196 or contact us online to schedule an appointment today.