Sexual Harassment in the Workplace
Harassment is an offshoot of the laws that prohibit discrimination-which means that harassment is illegal only if it is based on a person’s race, gender, age, disability, or other protected characteristic. These characteristics are determined by federal laws-such as Title VII, the Americans With Disabilities Act and the Age Discrimination in Employment Act-and by state and local laws that prohibit discrimination. More information follows about these laws.
Here are some workplace examples:
- An employee tells you they saw someone take an expensive piece of equipment from the building.
- An employee comes to you and reports that he/she was sexually harassed by an employee or a supervisor. An anonymous tip indicates that threats and coercion are creating a hostile workplace environment
- An employee reports that a co-worker is violating a company policy.
How you respond to complaints like these, sexual or not, could make the difference between a prompt and effective resolution of the matter and an expensive lawsuit. In cases involving allegations of sexual harassment or workplace safety violations, California law actually requires employers to investigate. When you uncover employee wrongdoing, or an employee comes to you with a complaint, you have to be ready to investigate!
Who Can Legally Conduct Fact-finding Investigations in California?
As an employer you have three choices in how investigate workplace issues:
Internal H.R. professionals may legally perform fact-finding investigations. However, when you choose to use an internal employee to investigate a grievance, questions of neutrality often arise. Unless, your company has a dedicated investigator on staff, it is unlikely that your H.R. Department has the legal knowledge necessary to afford maximum protection to your company during the investigation.
Use of Private Investigators and Attorneys
Under California law, the only independent contractors allowed to perform investigations are licensed private investigators and attorneys performing their duties as attorneys. Cal. Bus. & Prof. Code sec. 7520
Employers Assistance Programs
If you want to save your company money and still have peace of mind, there are professional employers associations (CA Employers Association) and professional out-sourced HR providers (HR Ideas) that can assist someone on your staff in conducting an internal investigation. This approach protects your company from the legal pitfalls (see "protected classes" below) and also enables someone from your staff to learn how to conduct future investigations.
Call CEA at: 1-800-399-5331 for more information about their program.
Call HR Ideas at: 1-925-556-4404 for more information about their program.
Both of these quality employer assistance organizations will ensure that all investigations meet EEOC guidelines (listed below).
Various federal and state Equal Employment Opportunity (EEO) laws govern discrimination and harassment. The various laws create what are known as “protected classes”. If a person is in a “protected class” and is treated differently because of his or her membership in that class, then the treatment violates these laws. “Protected classes” created by these laws include gender, race/color, national origin, religion, age and disability. It also prohibits retaliation.
Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of race/color, gender, national origin and religion. Sexual harassment is a form of gender discrimination. Harassment on the basis of race/color, national origin or religion is also a prohibited form of discrimination under the act.
The Americans with Disability Act (ADA) prohibits employment discrimination and harassment on the basis of the disability.
The Age Discrimination in Employment Act (ADEA) prohibits age discrimination in employment. It also prohibits harassment on the basis of age.
In California, the Department of Fair Employment and Housing (FEHA) protects the people of California from unlawful discrimination in employment, housing and public accommodations, and from the perpetration of such acts of hate violence.
The California Fair Employment and Housing Act provides protection from harassment or discrimination in employment because of age, ancestry, color, religious creed, denial of family and medical care leave, disability (mental and physical) including HIV and AIDS, marital status, medical condition, national origin, race, religion, sex and sexual orientation.
Allegations and/or complaints of violations of these protected classes in the work environment benefit from an early, independent and thorough investigation of the charges. Follow-up by the employer with appropriate action (training, discipline, changing policies/procedures, etc.), if warranted, is key to minimizing an employer’s exposure.
In 1998 the Supreme Court decided in two separate cases that if an employer has an anti-harassment policy and investigates harassment complaints quickly and fairly they can avoid liability in certain kinds of cases-even if the employee proves that he or she was harassed.
Sexual Harassment Investigations - License Required!
If you are an HR Consultant, or other 3rd Party/outside resource who conducts sexual harassment investigations for your client, you should call your attorney. According to the Business and Professions Code, 3rd party investigators must be a licensed (CA) private investigator or attorney. If the case you investigate is ever challenged, you put the integrity of that investigation and any related decision vulnerable to attack. This is a serious ethical issue.
If your company uses outside resources to conduct your sexual harassment investigations, be sure to consult with your legal counsel before proceeding.
As a licensed CA Private Investigator (#25313), HireSafe is uniquely capable to offer compliant workplace investigation in California.