What do I do about harassment complaints if the conduct occurred after work hours and the employee doesn’t want to file a “formal” complaint?

Under California’s Fair Employment and Housing Act (FEHA), employers who learn of potential unlawful harassment, discrimination or retaliation must conduct a prompt, impartial and thorough investigation into the complaint.

Further, under the FEHA, a supervisor’s conduct may create strict liability for employers for FEHA violations regardless of whether the employer was aware of that supervisor’s conduct — including when the supervisor is either the harasser or receives complaints of harassment from employees but fails to act on them.

One commonly misunderstood situation is the “off-the-record” complaint — where the employee brings to their supervisor a workplace harassment issue, but then says they don’t want to “file a formal complaint.” Employees often make this type of complaint because they’re concerned about negative reactions from either their alleged harasser or the employer. This can be confusing for supervisors, as they want to respect their employees’ wishes. But if the supervisor chooses not to report the complaint because the employee didn’t want to pursue it further, this can result in liability for the employer — because there’s no such thing as an “off-the-record” complaint.

If an employee raises a harassment issue, the supervisor must report it to the appropriate person within the organization. This also holds true when either a third party raises the complaint on behalf of another employee or the supervisor witnesses harassing conduct, but no one complains.

Similar to the off-the-record complaints, if a supervisor receives a complaint about conduct that occurred between two employees offsite or after hours, the supervisor must report that complaint as well.

The FEHA requires employers to take steps to prevent harassment in the workplace. If an employee is harassing a coworker outside of the workplace, that can contribute to a hostile work environment and must be addressed — or the employer risks violating the FEHA.

Ultimately, an employer may be liable for hostile work environment claims if a supervisor fails to report these types of complaints and the employer took no action to address the conduct.

Read more about Liability for Sexual Harassment in the HR Library.