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Witnesses Move on, and Memories Fade – but an Investigation Report is Forever
Let’s set the scene. It’s February of 2020, and an employee comes to you, a supervisor, to “vent” about being the target of off-color comments and jokes due to the employee’s national origin. The employee does not use the term “harassment.” Moreover, the employee tells you that they are just talking it out, and they don’t want to see anyone get into trouble. They do not request that the matter be investigated.
Should you investigate even if the employee does not use the term “harassment”? If you want to protect your employer, then the answer is “yes!” Should you investigate even if the employee doesn’t request that the matter be investigated? The answer is also “yes!”
You should investigate because the employer is now on notice of possible harassment due to a protected class and, under state and federal law, obligated to take action to prevent and/or correct it. A prompt and thorough investigation can go a long way toward ensuring that the employer has complied with its legal obligations. In fact, it could even convince the employee not to initiate litigation or, if a lawsuit is filed, it will be the cornerstone of the employer’s defense.
To illustrate this, let’s return to our scene, but fast-forward to December of 2022. The employee is not selected for a promotion. The following month, in January of 2023, the employee files a harassment complaint with the DFEH. The employee alleges that they complained to you about harassment in February of 2020, but that the employer failed to investigate and take remedial action. A year later, in January of 2024, the employee receives a right-to-sue notice. The employee then files suit for harassment and failure to take action to correct and/or prevent harassment.
The employee’s lawsuit is filed four years after the employee came to you to “vent” about harassment. Is the employee’s lawsuit too late? The answer is no.
On October 10, 2019, Governor Gavin Newsom signed Assembly Bill 9 (“AB 9”). Effective as of January 1, 2020, AB 9 amended sections 12960 and 12965 of the Government Code, increasing the statute of limitations to file a discrimination, harassment and/or retaliation complaint with the Department of Fair Employment and Housing (“DFEH”) from one to three years. If no right-to-sue notice is requested, the DFEH can issue such notice up to one year after the filing of the complaint. In practical effect, a lawsuit may be filed against an employer four years from the date of the alleged unlawful practice.
This employee’s lawsuit in the scenario above could have been avoided by prompt and thorough investigation. Such an investigation would establish that the employer takes allegations of harassment seriously, and that prompt corrective action will be taken. Moreover, such an investigation serves to preserve a record of what was said and done at the time of the events. That record can be used in litigation long after memories have faded and witnesses have moved on and, in many cases, away.
The employer should never be lulled into inaction by an employee’s assertion that they are just “venting” (or even by the employee’s failure to use the term “harassment” while “venting”). Once the employer is on notice of possible harassment based on an individual’s protected class, the employer must take action to prevent and/or correct it. A prompt and thorough investigation not only ensures that the employer is complying with state and federal law, but may also help avoid a lawsuit.
This article was originally published on LCW’s California Public Agency Labor & Employment Blog. You can read other articles and explore our blog by visiting calpublicagencylaboremploymentblog.com.