Harrassment Accusations and Due Process
I have a question about due process and how or when it is applied to harassment cases.
A male co-worker was recently accused of harassment by a female co-worker. The harassment was considered bullying and not sexual. The company conducted an investigation and made the determination that the male co-worker was responsible for the harassment. The male co-worker never knew about the allegations or that there was even an investigation being conducted. He found out about everything when the company sat him down and disciplined him in the form of a final written warning.
The company claims that they were not obligated to inform him about the allegations or that an investigation was being conducted. The company also said that they were not required to ask him for his side of the story because they had enough witness statements to support the harassment allegations.
When he was being issued his final written warning he denied the allegations. The company then asked him to provide a written statement explaining his side of the story.
The company considered this an appropriate form of due process. Was the company’s investigation conducted properly?
There were two recent harassment investigations that were conducted in this same manner. The accused never knew about the allegations or investigation until they were issued their discipline.
Hi Anonymous,
Thank you for your question. If the employee is at-will (which most employees in California are), they have very little right to due process before being disciplined or fired.
The obligation to investigate sexual harassment complaints arises out of the California Fair Employment and Housing Act (FEHA). FEHA gives employers an affirmative duty to take reasonable steps to prevent and promptly correct harassing conduct. (Gov. Code, § 12940, subd. (j)(1).)
This usually means that employers must provide employees with a process to ensure that complaints are impartially and timely investigated by qualified personnel. (Cal. Code Regs., tit. 2, § 11023.)
Employers also have a duty to ensure that the alleged victim’s complaint remains confidential, to the extent that is possible. But they should also work to create a process that provides all parties appropriate due process. (Cal. Code Regs., tit. 2, § 11023, subd. (b)(7).)
These competing duties can be difficult for employers to manage. For example, an employer may wish to avoid discussing the complaint with the accused employee until there is sufficient evidence because disclosing the nature of the complaint might violate the alleged victim’s wishes of confidentiality. It might also subject the complaining employee to retaliation by the alleged harasser.
To add to this, at least one California court has suggested that FEHA’s investigation process exists for the benefit of the alleged victim—not the alleged harasser. The same court rejected the idea that alleged perpetrators have a procedural right to a fair investigation. (Nakai v. Friendship House Assn. of American Indians, Inc. (2017) 15 Cal.App.5th 32, 44.) Meaning, alleged harassers can probably be reprimanded or fired without being provided with any opportunity to counter the complaining employee’s claims.
The conclusion from these rules and precedents seems to be that employers should seek to provide a fair investigation process to all parties, but there is basically no recourse for employees accused of harassment if they are treated unfairly. So it makes sense, from the employer’s perspective, to create a process that strongly favors the alleged victim’s due process rights (rather than those of the accused).
If the employee has a contractual provision that states they can only be punished or fired for cause, however, they probably have additional rights when it comes to ensuring a fair investigative process.
Anyway, I hope this answers your question. Please remember that this information does not constitute legal advice and should not be relied on. Nor does it create an attorney-client relationship.
I wish you the best of luck in your situation!