Carlton DiSante & Freudenberger LLP

Anti-Discrimination And Harassment Policies

All employers in California with one or more employees are required by law to provide information to their employees about sexual harassment and the company´s complaint process. Employers with five or more employees are also subject to state laws regarding other types of discrimination and harassment. Employers with five or more employees must also comply with federal laws prohibiting discrimination and harassment.

1. Elements of an Anti-Discrimination and Harassment Policy

According to the California Department of Fair Employment and Housing ("DFEH"), a harassment policy must, at minimum, contain the following elements:

A clear and comprehensive description of the kinds of conduct that constitute harassment because of gender, race, ancestry, or any other protected basis, and a forceful statement that such conduct is prohibited by the employer´s rules and by state and federal law;

A clear statement of an employee´s right to complain about harassment due to gender or any other protected basis, or to resist such harassment without fear of retaliation, and a procedure for making such complaints;

A procedure for promptly, fully, and objectively investigating complaints of harassment, due to gender or any other protected basis, and determining their merit; and

A statement that forceful and appropriate measures will be taken to punish offenders and redress the harm done to their victims, and guidelines and procedures for doing so.

Courts have held that a company policy regarding unlawful harassment is deficient if an employee´s immediate supervisor is the only individual to which he or she may report a complaint of harassment or discrimination. The supervisor could be responsible for, or a party to, the harassment. Employers must, therefore, make other reporting mechanisms for filing harassment reports available to all employees.

Employers are also responsible for telling their employees where the appropriate DFEH office can be found. Directing the employees to the telephone book is sufficient.

To ensure compliance with federal and state law, employers should periodically print and redistribute their unlawful harassment policies.

2. Postings

In addition to including a harassment policy in an employer´s handbook, it is advisable to post policies in a conspicuous place to remind employees of their importance and the employer´s commitment to a workplace free of discrimination and harassment.

California law also requires companies to display posters produced by the DFEH providing information on illegal sexual harassment. Employers should obtain and display such posters in a "prominent and accessible location in the workplace."

3. Sample Policies

The following are sample equal employment opportunity and anti-harassment policies. We recommend that companies have both. Companies should work with their legal counsel to tailor policies to their needs and keep them updated.

Sample Equal Employment Opportunity Policy

The Company is an equal opportunity employer and makes employment decisions on the basis of merit. We want to have the best available person in every job. The Company's policy prohibits unlawful discrimination based on race, color, creed, sex, marital status, age, national origin, physical handicap, disability, medical condition or ancestry or any other consideration made unlawful by federal, state or local laws. All such discrimination is unlawful. The Company is committed to complying with all applicable laws providing equal employment opportunities to all individuals involved in the operations of the Company and prohibits unlawful discrimination by any employee of the Company, including supervisors and co-workers.

To comply with applicable laws ensuring equal employment opportunities to qualified individuals with a disability, the Company will make reasonable accommodations for the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or an employee unless undue hardship would result.

Any applicant or employee who requires an accommodation in order to perform the essential functions of the job should contact his or her supervisor or the Office Manager and request such an accommodation, specifying what accommodation he or she needs to perform the job. The Company then will conduct an investigation to identify barriers to equal opportunities and to identify possible accommodations, if any, that will help eliminate the limitations. If the accommodation is reasonable and will not impose an undue hardship, the Company will make the accommodation.

If you believe you have been subjected to any form of unlawful discrimination, report it to a supervisor, manager, or the President. The Company will immediately undertake an effective, thorough and objective investigation and attempt to resolve the situation. If the Company determines that unlawful discrimination has occurred, effective remedial action will be taken commensurate with the severity of the offense. Appropriate action will also be taken to deter any future discrimination. Whatever action is taken will be made known to you and the Company will take appropriate action to remedy any loss to you as a result of the discrimination. The Company will not retaliate against you for filing a complaint and will not knowingly permit retaliation by management employees or your co-workers.

Sample Unlawful Harassment Policy

The Company is committed to providing a work environment free of unlawful harassment. The Company maintains a strict policy prohibiting sexual harassment and harassment because of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, age or any other basis protected by federal, state or local law or ordinance or regulation. All such harassment is unlawful. The Company's anti-harassment policy applies to all persons involved in the operations of the Company and prohibits unlawful harassment by any employee of the Company including supervisors and co-workers, as well as by any person doing business with or for the Company.

Prohibited unlawful harassment because of sex, race, ancestry, physical handicap, mental condition, marital status, age or any other protected basis includes, but is not limited to the following behavior:

Verbal conduct such as epithets, derogatory jokes or comments, slurs or unwanted sexual advances, invitations or comments;

Visual conduct such as derogatory and/or sexually-oriented posters, photography, cartoons, drawings or gestures;

Physical conduct such as assault, unwanted touching, blocking normal movement or interfering with work directed at you because of your sex, race or any other protected basis;

Threats and demands to submit to sexual requests as a condition of continued employment, or to avoid some other loss, and offers of employment benefits in return for sexual favors; and

Retaliation for having reported or threatened to report harassment.

If you believe that you have been unlawfully harassed, please take your complaint to your own or any other supervisor, manager, or the President as soon as possible after the incident. Your complaint should include details of the incident or incidents, names of the individuals involved and the names of any witnesses. Supervisors will refer all harassment complaints to a manager, or the President. The Company will immediately undertake an effective, thorough and objective investigation of the harassment allegations. The investigation will be conducted as confidentially as is practicable.

If the Company determines that unlawful harassment has occurred, effective remedial action will be taken in accordance with the circumstances involved. Any employee determined by the Company to be responsible for unlawful harassment will be subject to appropriate disciplinary action, up to and including termination. Whatever action is taken against the harasser will be made known to the complaining employee and the Company will take appropriate action to remedy any loss to you resulting from harassment. The Company will not retaliate against you for filing a complaint and will not knowingly permit retaliation by management employees or co-workers.

The Company encourages all employees to report any incidents of harassment forbidden by this policy immediately so that complaints can be quickly and fairly resolved. You should also be aware that the Federal Equal Employment Opportunity Commission and the California Department of Fair Employment and Housing investigate and prosecute complaints of prohibited harassment in employment. If you think you have been harassed or that you have been retaliated against for resisting or complaining, you may file a complaint with the appropriate agency. The nearest office is listed in the telephone book.

Investigations

1. Standard

The standard that employers are held to in defending their investigations and remedial actions following a claim of sexual harassment or other unlawful employee conduct was articulated in Cotran v. Rollins Hudig Hall International, 17 Cal. 4th 93 (1998): "the employer must be able to show that in response to the allegation of misconduct the employer conducted a good faith and reasonable investigation as a basis for the corrective action taken."

2. Investigator

Investigations should generally be conducted by in-house personnel or a third party private investigator or attorney. If a private attorney is hired to conduct the investigation, the company should not hire the same attorney it plans to have defend any resulting lawsuit. This is because the attorney may be called upon to testify as a percipient witness of material relevant facts. The investigator needs to be discreet, objective, not involved in the situation, and able to ask good follow-up questions.

3. Outline of Recommended Steps for an Investigation

The following is a general outline of steps that should be considered in investigating a discrimination and/or harassment complaint.

Overview

For the protection of employees and the company:

Document complaints.

Document follow-up.

Take corrective action if necessary.

Document the action taken.

Report back to complainant.

Interview the Complainant

Generally, the complainant is interviewed first. In doing so:

Get the details of the problem clearly.

If there has been a delay in complaining, find out why.

Find out what the employee thinks the company should do.

Get the names of witnesses or others who have a similar problem.

Interview The Alleged Wrongdoer

In interviewing the alleged wronddoer:

State the company´s expectations, i.e., the individual has a duty to cooperate and a duty not to retaliate.

Get the full story from the other side:

Ask for an explanation, if any, of why the complaining party or parties would exaggerate or fabricate.

Not all charges are true; so emphasize that confidentiality is important.

In "minor" cases, suggest having the parties meet to resolve by face-to-face "talking it out."

Interview Witnesses

It is also important to talk to witnesses or those with knowledge of the events. In doing so:

Explain the duty to respond truthfully.

Tell them you will protect confidentiality to the extent possible.

Ask for, but don't share, all the details.

Assurances to Employees

Every employee must be assured:

There will be no retaliation for complaining or reporting.

The Company will take complaints seriously and will act promptly.

All the parties will be interviewed promptly.

Confidentiality

In conducting an investigation, it is important to address problems of confidentiality:

Ordinarily, the complainant must give permission for the company to pursue the matter.

Complaints or reports should be treated confidentially if possible, consistent with the company´s obligations. This cannot, however, be absolutely assured.

Remedies

The remedies for addressing legitimate complaints vary with the circumstances:

Employees must correct disparate treatment/benefit/leave problems.

Discipline must be meted out for those found to have harassed or discriminated others. Progressive discipline is often appropriate and most defensible‑‑up to, and including, termination.

Serious or repeated cases must be treated more seriously.

If a warning has been given, employers must follow through.

Reassignment may be considered, but it cannot punish the victim.

Employees must understand that mere "tolerance" is not an option.

Always follow up with the person who has complained or who is the victim of discrimination to let that person know the result and to ensure no retaliation is occurring.

Defending Employment Discrimination/Harassment Charges by Responding To EEOC/DFEH Charges

The United States Equal Employment Opportunity Commission ("EEOC") and the California Department of Fair Employment and Housing are the government agencies charged with enforcing federal and state employment discrimination laws. Persons who allege employment discrimination cannot sue in court until they first file a timely charge with either the EEOC or DFEH. These agencies perform investigatory, conciliatory and prosecutorial functions in connection with these charges.

After a charge is filed with the EEOC or DFEH, the agency notifies the employer. A copy of the charge is generally accompanied by a formal request for information, which asks the employer to respond in detail to the charge and to provide other relevant information, such as the names of any potential witnesses. Although the time for responding to a charge can often be fairly short, the agencies are generally amenable to providing an extension of time.

If the charging party did not complain informally before filing his or her charge, the employer should immediately investigate. The employer should interview the individual(s) complained of in the charge, as well as any other potential witnesses. Whether to interview the charging party is a decision that should be weighed very carefully. If an interview occurs, it should be conducted by the human resources professional or other employee who normally investigates such complaints, or by an attorney. The charging party should be assured that his or her complaint is being taken seriously and that the purpose of the interview is simply to obtain information that will help the employer investigate the complaints and respond to them appropriately.

When preparing a written response to the charge, the employer should be sure to emphasize that its response is an initial one and that the employer reserves the right to amend or supplement the response, if necessary. The response should address each of the allegations made in the charge and should attach any documentary evidence that supports the employer´s position. The employer should keep in mind, however, that any information gathered by the DFEH in the course of its investigation is subject to disclosure.

After receiving the employer´s response, the EEOC or DFEH will determine if it has enough information to make a determination, or whether further investigation is needed, such as on-site interviews. Both the EEOC and DFEH are authorized to issue subpoenas to obtain documents, access to the work-site and/or to compel testimony of witnesses. If a charge progresses to this stage, an employer will almost always want to involve counsel who can prepare the witnesses and, if necessary, seek to modify or revoke the subpoena.

Once the agency has collected sufficient information, it will make a determination of either "cause" or "no cause." A finding of no cause will result in a dismissal of the charge and the issuance of a right to sue letter to the charging party. A finding of cause, however, can result in either conciliation or a referral to the litigation division of the agency. Conciliation is essentially the formal process by which the agency attempts to resolve the complaint through appropriate corrective measures, such as compensation or modification of an allegedly discriminatory policy or practice. The end result sought is a written agreement from the employer that remedies the discrimination about which the charging party has complained.

Protecting Against Discrimination and Harrassment Claims