Why Conduct Investigation?

Harassment and discrimination investigations in California should be conducted by the employer whenever the alleged victim contends that the wrongful conduct was motivated (at least in part) by the alleged victim being a member of any of the following classes:

Age (40 and over);

Ancestry;

Color;

Religious Creed;

Denial of Family and Medical Care Leave;

Disability (mental and physical) including HIV-positive and AIDS;

Marital Status;

Medical Condition (cancer and genetic characteristics);

Genetic information;

National Origin;

Race;

Religion;

Sex (including pregnancy, childbirth and medical conditions related to pregnancy or childbirth, and breastfeeding);

Gender, Gender Identity, Gender Expression;

Sexual Orientation.

Under Federal law, Title VII (Civil Rights Act of 1964, 29 CFR Section 1604.11(f)) requires the employer to "take all steps necessary to prevent harassment from occurring."  According to the EEOC’s Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (June 1999), "when an employee complains to management about alleged harassment, the employer is obligated to investigate the allegation."   Further, at least one federal appellate court has said that the "Employer’s investigation of a sexual harassment complaint is not a gratuitous or optional undertaking but required by law."  Malik v. Carrier Corp, 202 F.3d 97 (2nd Cir. 2000).

Under California law, the Federal Employment Housing Act (FEHA) (Calif. Gov’t Code Section 12940(j)(1) and (k)) requires employers to "take all reasonable steps to prevent discrimination and harassment from occurring."  "Under FEHA, an employer … has an obligation to ‘take all reasonable steps necessary to prevent discrimination and harassment from occurring in the workplace.’…  The affirmative and mandatory duty … requires the employer to conduct a prompt investigation of a discrimination claim."  American Airlines v. Superior Court (Di Marco), 114 Cal.App.4th 881 (2003).