California law requires employers to:

• Respond to complaints in a timely manner;
• Document and track complaints for reasonable progress;
• Timely close complaints;
• Reach reasonable conclusions based on the evidence collected;
• If the investigation reveals misconduct, take appropriate corrective action and remedial measures, including steps to prevent future harassment and measures to correct the effects of the harassing behavior; and
• Take steps to prevent retaliation.1

When analyzing facts, very few issues are black and white. You must apply logic to reach a conclusion. Unless the subject of an investigation admits to the alleged conduct you must examine the relevant facts based on the foundation of your experience.

As a general rule, if you have conducted a fair and impartial investigation, the courts will not interfere with your reasonable conclusion to the investigation.

Examine the Objective Facts

To reach a reasonable conclusion, examine the objective facts collected to reach a logical conclusion. Examine:

• All the interviews and relevant supporting documentation.
• Only information relevant to the complaint.
• Only facts, not assumptions of intent.

Ask yourself:

• Did similar actions happen in the past? Were they reported? If not, why?
• Did the objective evidence reveal any motivation to fabricate facts or deny actions? (Look only at the facts, something someone said, for example — not assumptions — as to motivation.)
• Did either the complainant or the respondent say anything at any point that you subsequently found to be false?
• Is there a conflict in the accounts? Are there other facts that will help me resolve the conflict?

Why Someone Might Not Immediately Workplace Misconduct

A complainant might delay raising a complaint because they:

• Feel that they have less power than the respondent
• Fear retaliation and/or losing their job
• Think they will not be believed
• Doesn’t want to cause trouble
• Think that if they ignore the misconduct, the problem will go away
• Are embarrassed and don’t want publicity
• Think it is their fault (has misplaced feelings of guilt)
• Is uncertain about how and to whom to report harassment
• Lack trust in the investigation process or investigator(s)

Assess Credibility

In many cases, there may not be a corroborating witness. The investigation may come down to evaluating competing statements form the complainant and respondent. This does not mean that the alleged conduct did not occur. Quite the contrary; individuals engaging in misconduct do not usually invite an audience. A trained investigator must assess credibility. Pay attention to nonverbal clues such as body language, tone of voice, eye contact, reactions to allegations. Ask yourself:

• Does any evidence exist to corroborate the complaint?
• Was the complainant’s story consistent with the information that you learned from other witnesses?
• Did anyone change their story during the investigation?
• Did anyone add or withdraw an allegation?
• Does the story make sense?
• Is the story consistent and plausible?
• Are there any indications of bias, hostility or self-interest?

Many times credibility decisions are based on the trained investigator’s best judgment. Do not be afraid to make credibility decisions. If you do, be sure you can back up the decisions with reasonable explanations.

• Harassment Investigation Credibility Assessment Guidelines

Come to a Reasonable Conclusion

After analyzing all of the facts, reviewing all the relevant documents and assessing credibility, the investigator must come to a reasonable conclusion about whether the alleged conduct occurred. Sometimes, investigators are also asked to decide if any relevant policies were violated.

The investigator will come to one or more of the following conclusions, depending on number of allegations and whether the investigator must make policy violation determinations:

• Whether the alleged conduct occurred
• Company policy was violated
• Company policy was not violated

• The investigator should not state that the law has been violated. This is a legal conclusion that should be made only by competent legal counsel. Drawing legal conclusions falls outside the investigator’s duties, even if the investigator is a lawyer.

Prepare an Investigation Summary and Retain Files

After the investigator collects and analyzes the facts and then draws conclusions, they should document the findings and conclusions in an investigation summary. If the investigation was performed by an outside party, ensure that the investigator communicates the investigation report only to you or your agent. This summary should include

• The sequence and process followed from the time the complaint was raised, through the investigation to the final decision.
• Factual information relevant to the complaint, no assumptions.
• The key facts you used to make your conclusions, including interviews and relevant supporting documentation.
• Your credibility assessment criteria, which states how the credibility of the individuals who supplied information was assessed.
• The conclusions.
• Any complaints that were not resolved in the investigation and why they were not resolved (e.g., the complaint raised fell outside the scope of the investigator.

Keep all files and documentation in case of further litigation. Repeat the investigation process if employees raise any other serious harassment complaints within the workplace that were not resolved in the current investigation. To prevent further occurrences, train your employees as often as possible.

Limit access to this file to only those with a legitimate business reason. If litigation that relates to the complaint arises, the respondant, the complainant and others will probably obtain access to the file. Do not release the information in the final investigation file to anyone outside the company except when required by law, such as in the course of a lawsuit brought by an employee.

• Review HR and/or line management working files and notes to determine what to place in the final investigation file. Do not destroy any documents without the advice of legal counsel.

Although the actual content of the final investigation file will vary depending on the particular circumstances of each investigation, the file should generally include only the following information:

• Written communication from the complainant
• Complaint confirmation to the complainant (see Harassment Investigation Letter to Complainant )
• Leave of absence notice (see Leave of Absence Notification with Pay )
• Investigation summary
• Results and notifications
• Notification to the respondent (see Harassment Investigation Letter to Alleged Harasser )
• Memo to the file regarding retaliation
• Notification to the complainant after the investigation
• Notification to the respondent after the investigation
• Notes and supporting documentation as necessary to support key facts or conclusions in the investigation summary
• Written or electronic communications about the investigation to others, which may be important to demonstrate the steps taken during the investigation

• Harassment Investigation Letter to Complainant
• Leave of Absence Notification with Pay
• Harassment Investigation Letter to Alleged Harasser

• Place only the final copies of documents in the final investigation file. Do not include drafts of the documentation.

Take Corrective, Preventative and Remedial Action

After the investigation has concluded, move swiftly to assess if corrective action is necessary. Employers are required by law to:2

• Promptly correct harassing conduct
• Take effective steps to prevent future harassment
• Take appropriate remedial measures to correct the effects of harassment

If the investigation was lengthy, it may not be wise to wait for a written report. The investigator can orally brief you about the investigation process and results so you can decide on corrective action.

To determine what appropriate corrective action to take, consider the following:

• Did some form of harassment occur? If so, would you consider it to be a serious offense? What did the company do in the past about similar violations?
• Do any federal, state or local harassment laws require you to take certain actions in this case?
• Has the employee ever violated any harassment or other organization policies in the past?
• Do any other aggravating or mitigating circumstances exist that could affect your recommendation?

After considering these factors, you are ready to determine if discipline is warranted and, if so, the amount of discipline necessary. The action you choose must be appropriate for the severity of the conduct. Some disciplinary options include:

• Training for the harasser
• Verbal discussion and counseling
• Written warning
• Suspension, demotion, transfer or reduction in salary
• Termination

Different situations call for different actions. If the course of corrective action is not clear, you may want to consult legal counsel. After you decide what to do, use the Harassment Discipline Checklist to make sure you cover all the issues.

Follow through on all corrective actions.

• You may be liable for disclosing information regarding specific allegations and the resulting disciplinary measures to people within the company. Limit disclosure to only those with a business need to know.

You should also determine what steps are necessary to effectively prevent future harassment, such as:

• Companywide training of all supervisors and/or employees
• Revisions to existing policies or practices
• Redistribution of policies

Finally, you need to consider what action is necessary to correct any effects of the harassment and remedy the complainant’s loss, if any. This step is best taken with advice from legal counsel.

Communicate Investigation Results

When the investigation is over, communicate the results to both the complainant and respondent.

• Explain the conclusion that you reached. Only provide the information that the party needs-to-know, maintaining confidentiality to the extent possible. Include any complaints that were not resolved in the investigation and why they were not resolved. Encourage the employee to provide any relevant additional information that they may have.
• If misconduct is found, inform the respondent about the actions that you are taking as a result of the investigation.
• If you decided that disciplinary action was required, do not divulge the nature of the action to the complainant. Disciplinary action is confidential personnel information. You can indicate that some action will be taken, without going into specifics.
• Review your policy against retaliation and what to do if retaliation occurs.
• Close by letting the complainant or respondent know whom to contact if they have questions or information in the future about this investigation.

1. 2 CCR sec. 11023