Sexual harassment in the workplace should never be tolerated. Federal and state governments have laws regarding sexual harassment in the workplace to protect the safety and wellbeing of employees.
The California Department of Fair Employment and Housing (DFEH) has regulations that secure safe working conditions for employees. Under Title 2 of the California Code of Regulations, employers have an obligation to provide a workplace free of sexual harassment.
Section 1123 (a) of the Official California Code of Regulations explicitly states that “employers have an affirmative duty to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct.”
Investigating assault in the workplace
Sexual assault in the workplace is a serious issue and each claim should be given a thorough assessment. As an employer, you need to investigate each sexual assault claim as soon as possible.
Because of the sensitive nature of sexual harassment, employers and companies should handle any complaints and reports carefully without prejudice or bias. Below are the steps and measures you need to take when investigating sexual assault or harassment.
Determine if the claim warrants further investigation
First, you must assess the report and consider the severity of the action. This is to determine whether or not there’s a need for a full formal investigation into the incident. If the complaint doesn’t require an investigation, the recourse is often a direct reprimand to the perpetrator.
For example, if an employee reports discomfort over offhand comments, jokes, or compliments, then it can be resolved through a one-on-one talk with the perpetrator. A human resource representative can easily counsel individuals and discuss their inappropriate behavior. Also, take this as a sign to step up measures for the prevention of sexual harassment at the workplace.
For more serious matters, such as violation of company rules and expectations, a thorough formal investigation is needed. The investigation’s focus should be looking at the facts and finding out what, exactly, took place.
Conducting a fair investigation
If reports of sexual harassment or assault warrant further investigation, you must make sure the process is fair to all parties throughout the process. The following are the elements of a fair investigation:
Your investigation should have an emphasis on being fair to both parties. The best first step into an unbiased investigation is getting an accounting of the series of events. This can be done through in-person interviews with both the complainant and the accused. Relevant parties like witnesses should also be interviewed to complete the picture.
Depending on the nature of the sexual assault complaint, it might be best not to reveal who the complainant is when interviewing the accused. The goal of the interview is to give each person the opportunity to recount what happened from their point of view. Also, make sure the accused is made aware of exactly what allegations are being brought against them so they better understand the gravity of the situation.
Due process is about making sure you have a good handle on what transpired. This includes viewing surveillance tapes, reviewing previous behavior, visiting the worksite, and the like.
Always start an investigation from an impartial point of view. This will make the investigation just and lead to a fair conclusion. When choosing an investigator, make sure they have no biases that could compromise the integrity of the investigation.
Perception biases can affect the outcome of the investigation. If the involved parties think the investigator has biases, the accused and/or complainant might be averse to having an open dialogue with them.
In addition to having an impartial and unbiased opinion, the investigator you choose should also have the skills and certifications for the job. A qualified investigator must also:
- Be knowledgeable about standard investigatory practices
- Be licensed investigators or attorneys (applicable to external investigators in California)
- Have undergone training conducted by professional human resources organizations
In cases of alleged sexual assault, harassment, and/or misconduct in the workplace, it’s best to seek the advice of a sexual assault attorney. As an employer, you need someone to help you navigate the legal process and ensure that all the requirements are complied with.
Legal counsel can also help you create confidentiality measures and ensure that any communication between parties is protected by the attorney-client privilege.
Contact the premier sexual harassment lawyers in San Diego
If you need legal counsel, get in touch with Hogue & Belong — the best law firm in California. They have a combined 30 years of experience and are staunchly dedicated to seeking justice for victims of sexual assault, harassment, and discrimination.