Lack of Rigorous Investigation is Evidence Suggesting Employer Did not Value the Truth

(THIS IS NOT LEGAL ADVICE – EDUCATIONAL PURPOSES)

In the Mendoza case, the Court held that a “lack of rigorous investigation is evidence suggesting defendants did not value the discovery of the truth so much as a way to clean up the mess uncovered when [the employee] made his complaint.” See Mendoza v. Western Med Ctr. Santa Ana, (2014) 222 Cal.App.4th 1334, 1344-45. Basically, an employer’s intent to harass and discriminate may be inferred from the failure to make a timely good-faith investigation.

So how do you know if your employer is conducting a fair and thorough investigation into your complaint? Prior to even conducting an investigation, the employer should scrutinize the situation to determine whether any immediate steps need to be taken. The Employment Equal Opportunity Commission (“EEOC”) has set forth examples of precautionary steps that may be necessary, including: “scheduling changes so as to avoid contact between the parties; transferring the alleged harasser; or placing the alleged harasser on non-disciplinary leave with pay pending the conclusion of the investigation.” The employer must also ensure the complainant “not be involuntarily transferred or otherwise burdened since such measures could constitute unlawful retaliation.”

As to the actual investigation, the California Fair Employment & Housing Commission (“FEHC”) maintains that “[t]he investigation must be immediate, thorough, objective and complete. Anyone with information on the matter should be interviewed. A determination must be made and the results communicated to the complainant, to the alleged harasser, and, as appreciated, to all others directly concerned.”

There are a few crucial points to keep in mind as far as workplace investigations:

      1. ​​The employer must promptly initiate an investigation – at least within a few days of the employee’s complaint.
      2. The investigator chosen should be impartial and well-trained in workplace investigations.
      3. The investigator and employer must work together in determining the scope of the investigation. Too often we see the employer shift the investigation from the complainant’s concerns to an investigation into the complainant’s performance and/or behavior. If this happens, something is off.
      4. It is also important the investigator follow the employer’s policies and procedures when conducting the investigation, as a deviation may evidence bias.
      5. The investigator should gather and document all relevant evidence, including interviewing key witnesses. In doing so, the investigator should take steps to maintain confidentiality, but not guarantee it, as sometimes it is important to reveal information in order to conduct an effective investigation.
      6. Upon completing the investigation, the investigator should then provide the employer with a written report identifying the investigation process, the evidence, and his/her findings/conclusion.
      7. The employer must then follow up and take action, if necessary, to make sure the problem has been resolved.

These key points should help the employer take corrective action that is reasonably calculated to end the harassment and prevent future harassment of its employees. Make sure your workplace complaints are being taken seriously.

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Sharam Kohan
Sharam Kohan

Sharam Kohan: Biography

Sharam Kohan is a seasoned professional with an extensive background in law, human relations, and organizational leadership. Currently a degree candidate for an LLM at UC Berkeley Law, Sharam brings a unique blend of legal education, hands-on experience, and a deep commitment to social justice and human rights.

With a career that spans diverse sectors, Sharam's expertise extends far beyond the classroom. He has served as a Human Relations Commissioner, contributing his leadership to Alameda County’s Human Relations Commission, where he worked on initiatives to improve community relations and promote equity. His dedication to social change is also evident in his philanthropic efforts as a donor to organizations like FACES SF, which provides vital resources and support to the Bay Area’s underserved communities.

An advocate for labor and employment rights, Sharam holds a specialization in Employment Law from Temple University School of Law, which has furthered his ability to navigate complex legal frameworks. His professional journey includes leadership roles across human resources and operations, where he has honed his ability to manage teams, shape organizational culture, and implement effective strategies that drive success. He also holds SHRM certification, further solidifying his expertise in human resources management.

As a writer and thought leader, Sharam has authored multiple works that delve into complex philosophical and legal topics. His books, Judgment, a Priori Itself and Sartre’s Conception of Freedom, explore the intersections of law, philosophy, and human freedom, blending his academic background with a passion for intellectual inquiry. These works have garnered attention for their thoughtful analysis and exploration of complex ideas, establishing Sharam as a respected voice in both legal and philosophical circles.

Though not a traditional legal scholar, Sharam’s interdisciplinary approach to understanding law and society has made him a sought-after commentator on topics ranging from legal theory to organizational dynamics. His writing can be found on various platforms, including his blog at Harvard, where he shares insights on law, politics, and social issues.

Sharam Kohan is a dynamic and forward-thinking professional with the knowledge, experience, and passion to contribute meaningfully to the legal, social, and business landscapes.

For more on Sharam Kohan’s work, visit his blog at archive.blogs.harvard.edu/kohan and his author pages on Amazon, including Judgment, a Priori Itself and Sartre's Conception of Freedom.

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