An Employer’s Duty to Conduct Workplace Investigation

Under California law, an employer is required to promptly and thoroughly investigate any claim of harassment, discrimination, or retaliation through a formal workplace investigation. The obligation to investigate arises out of the affirmative duty under the Fair Employment and Housing Act, Cal. Gov. Code section 12940(j) and (k) to take all reasonable steps necessary to prevent discrimination and harassment from occurring. The duty to investigate a harassment claim promptly and throughly exists whether or not the claimant consents to an investigation or cooperates with one. Further, neither an employee’s failure to report harassment nor the fact that the harassment stopped before the investigation began conclusively absolve an employer from liability for discrimination and harassment. Moreover, it is not enough for an employer to conduct an investigation without also taking measure to protect the employee from retaliation.

Employer’s failure to investigate an employee’s complaint adequately may violate California anti-discrimination laws. To be adequate, the investigations should be commenced immediately or as soon as practicable, and be completed as soon as circumstances reasonably allow. Investigations commenced within a day or days of a complaint and completed within a two-week period have been routinely upheld as timely. Waiting until after the complainant has filed an administrative charge with DFEH or EEOC will be presumed inadequate.

While the complaint is undergoing investigation, the employer should take steps to prevent contact between the complaining employee and the alleged harasser, such as rescheduling or placing the alleged harasser on leave.