If an employee mentions feeling harassed, bullied, or discriminated against, but is concerned about retaliation, is the employer required to get the complaining employee’s permission before starting an investigation into the problem?
No. Under California law, employers have an independent duty to investigate and take reasonable steps to prevent and remedy harassment and discrimination.
Once an employer becomes aware that discrimination or harassment may have occurred or is currently taking place, the employer must act to confirm what has occurred and, if verified, take steps to ensure that the unlawful conduct does not continue. This is true even if no formal complaint is ever filed, or even if the complaining employee specifically asks that no action be taken.
Failing to investigate harassment or discrimination, however you learn of the problem, can result in your company being held liable for supervisors’ or employees’ misconduct.
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In addition, once an employee puts an employer “on notice” of possible illegal conduct, that employee has engaged in “protected activity.” An employer cannot retaliate against such an employee, and additionally has the duty of ensuring that others (coworkers, supervisors, and managers—even those at the highest level) also don’t retaliate.
Employers should always take steps to make sure complaining employees know that they are protected from retaliation. Employees who witness harassment or discrimination should also be assured that they will not suffer any repercussions as a result of disclosing what they saw or heard.
Note that while bullying itself is not technically illegal, bullying can be part and parcel of discriminatory or harassing conduct. It’s a good idea to have an anti-bullying policy in place and make sure it’s enforced. CEA Online subscribers can access our sample, customizable anti-bullying policy.
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