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For any employer, receiving an internal complaint of harassment or discrimination is unsettling. However, it is imperative, as California law requires, an employer promptly and thoroughly investigate all such claims. If a lawsuit is ultimately filed, often times courts require employers to produce their investigation. Hence, the importance of ensuring it is thorough and objective.
The first step in conducting an objective investigation is to gather all of the facts. The person charged with investigating the claim needs to be trained or have experience in interviewing witnesses and evaluating credibility. Furthermore, the person investigating the claim cannot be the object of the investigation. If the alleged harasser is the owner of the business, it is advisable to use legal counsel to conduct the investigation.
The claimant should be asked to present his/her complete story in writing. Thereafter, the claimant should be interviewed to address issues not covered in his/her written statement. After interviewing witnesses, written statements should be prepared and presented to the witness for signature under the penalty of perjury. All interview notes, statements and other related documents should be maintained in a separate file marked “Confidential”. While the claimant, witnesses and accused should be advised the investigation is confidential, absolute confidentiality is not possible because of the legal requirement to investigate, communicate and discipline.
Once the factual investigation is complete, if warranted, inform the claimant and accused of the facts gathered, without disclosing sources, and provide an opportunity to respond to your final factual determinations. Thereafter, if justified, engage in appropriate discipline which could range from a written warning, transfer, leave without pay or termination. Document your response even if it is a determination no harassment or discrimination occurred.
Harassment and discrimination claims are serious, and employers need to respond accordingly by conducting a thorough and objective investigation.