The #MeToo movement has made headline news over the past few years and more recently has caused California lawmakers to spring into action. Two substantive changes to California law went into effect earlier this year that provide increased protection against harassment for California employees. Workplace investigators are now seeing a notable consequence of these legislative changes: an increased demand to conduct neutral and thorough investigations of claims that previously may not have been deemed necessary to investigate.
One change impacts the legal standard applied in sexual harassment cases. Legal precedent in hostile work environment sexual harassment cases in California previously followed the federal standard, requiring that a plaintiff prove that she/he was subjected to conduct deemed “severe or pervasive.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). In Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000), the court held that one single incident of comments and fondling of a coworker’s breast was insufficiently severe and thus could not constitute hostile work environment harassment under the law. The court noted that “if a single incident can ever suffice to support a hostile work environment claim, the incident must be extremely severe.” Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000).
This year, the California legislature softened this standard, rejecting the Brooks holding and implementing a new statute that specifically provides that a single incident of harassing conduct is sufficient to survive summary judgment in a hostile work environment case. Cal. Govern. Code section 12923(b). Thus, it appears that in California, a single incident need not be deemed “extremely severe” to make out a hostile work environment claim; rather, a plaintiff is required to establish that an incident unreasonably interfered with his/her work performance or created an intimidating, hostile or offensive work environment.
Another change impacts the scope of employer liability. Employers historically were liable for sexual harassment of third-party nonemployees (such as vendors or customers) if they knew or should have known of the harassing conduct and failed to take corrective action in response. The new law expands an employer’s obligation to monitor the interactions of third parties and employees. Now, other types of harassment (based not just on sex, but protected categories like age, disability or race) also require corrective action if the employer knew or should have known of the harassing conduct. Cal. Govern. Code section 12940(j)(1).
So how have these changes in the law affected workplace investigations? The main impact is an increased need for such investigations.
Previously, employers might not have commenced an investigation if an employee reported one incident of potentially harassing conduct that did not appear “extremely severe.” Because these changes to the law make litigation a much more viable option when one incident is at issue, employers are now more likely to initiate an investigation.
Further, employers must now more closely monitor their employees’ interactions with third parties because any type of harassing conduct requires an employer to take corrective action. Thus, if an employee claims he was subjected to aggressive, harassing or bullying conduct from an employer’s vendor because of his race (or any protected characteristic), the employer needs an investigator to determine whether facts exist to support such an allegation.
Although the need for investigations has increased, the new laws do not impact the investigation process. Because workplace investigations are designed to uncover facts, attorney investigators rarely if ever provide legal advice or legal conclusions. For this reason, whether the allegations involve one incident or many, or allege harassing conduct based on sex or race, the investigator engages in fact finding through witness interviews, review of relevant documents and other means. Ultimately, the investigator will reach a factual finding of whether, more likely than not, the allegations are substantiated.
Factual findings from an impartial and thorough workplace investigation can help employers navigate the #MeToo climate, giving them greater clarity on the appropriate corrective action needed.
