Kristin's Blog
DFEH Issues Workplace Harassment Guide

WITH RECOMMENDED PRACTICES FOR WORKPLACE INVESTIGATORS

In May 2017, the California Department of Fair Employment and Housing (DFEH) issued the
“California Department of Fair Employment and Housing Workplace Harassment Guide for
California Employers,” which discusses how an employer should effectively deal with
harassment in the workplace, including identifying an effective anti-harassment program, and
defining the basic steps and recommended practices for conducting proper workplace
investigations.

The DFEH’s May 2, 2017 Press Release announcing the new Workplace Harassment Guide
indicated, “the guide is aimed at helping employers develop an effective anti-harassment
program; know what to do and how to investigate reports of harassment; and understand what
remedial measures they might pursue.” (See Press Release here.) DFEH Director Kevin Kish indicated,
“[p]reventing and correcting sexual harassment in the workplace
is not only legally required, but it is one of the best ways that an employer can ensure a healthy
and productive workplace for all employees.”

The Guide is very instructive on workplace investigations as it outlines the basic steps required
for a complete, thorough and neutral workplace investigation. The DFEH’s basic factors are to:
(1) conduct a thorough interview with the complaining party, preferably in person, (2) give the
accused party a chance to tell his/her side of the story, preferably in person, (3) interview relevant
witnesses and review relevant documents, (4) do other work that might be necessary, including a
worksite visit, review of videotapes, pictures, etc., and (5) reach a reasonable and fair conclusion
based on the information collected, reviewed and analyzed during the investigation.
(See DFEH Guide here: Citation at Page 2.)

The Guide also effectively delineates the recommended practices for workplace investigators,
including the need to be impartial, the required qualifications and training, suggestions for types
of questioning, and an instruction to reach a reasonable factual conclusion based on a
“preponderance of the evidence standard,” also referred to as, “more likely than not.” The
DFEH’s instruction to reach a conclusion is supported by the identification of nine (9)
“Credibility Factors” set forth by the DFEH to aid the investigator in making credibility
determinations: (1) inherent plausibility, (2) motive to lie, (3) corroboration from witnesses or
other available, (4) extent the witness was able to perceive, recollect or communicate about the
matter, (5) history of honesty/dishonesty, (6) habit/consistency in behavior, (7) inconsistent
statements, (8) manner of testimony such as hesitations of speech or indirect answers, and (9)
demeanor. (See DFEH Guide here: at Citation Page 6.) The DFEH also cautions investigators to
reach factual conclusions, not legal conclusions.

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