Mcle Self-study: Guidelines for Responding to Sexual Harassment in the Workplace: an Update

• Jurisdiction: California,United States
• Author: By Amy Oppenheimer and Alezah Trigueros
• Publication year: 2018
• Citation: Vol. 32 No. 2

MCLE Self-Study: Guidelines for Responding to Sexual Harassment in the Workplace: An Update

By Amy Oppenheimer and Alezah Trigueros

Amy Oppenheimer is an attorney and retired administrative law judge whose law firm focuses on workplace investigations. She has written a book about investigations, and testifies as an expert witness on employer practices in responding to, and investigating, harassment. She is also the founder and past-president of the board of the Association of Workplace Investigators (AWI), and served on the DFEH's Task Force on the Prevention of Sexual Harassment in the Workplace. Alezah Trigueros is an attorney who has been conducting impartial workplace investigations with the Law Offices of Amy Oppenheimer since 2014.

New Guidelines

Sexual harassment has never been in the spotlight so much as it has over the last few months. One issue that has been under scrutiny is how institutions respond to harassment complaints. A place to turn when determining an appropriate institutional response are guidelines provided by enforcement agencies, such as the U.S. Equal Employment Opportunity Commission (EEOC) and the California Department of Fair Employment and Housing (DFEH). Many practitioners are unaware that DFEH recently published new guidelines that are of great assistance in determining an appropriate response to claims of discrimination and harassment (DFEH, Workplace Harassment Guide for California Employers (2017)). Other government guidelines to consider are the EEOC Enforcement Guidance on Vicarious Employer Liability for Harassment by Supervisors, which was published in 1999 in the wake of the Supreme Court decisions in the Ellerth and Faragher cases.¹

Until recently, the 1999 EEOC guidelines were the only government guidelines available that addressed appropriate employer responses. These guidelines were very helpful; however, EEOC is updating them. Last year, the EEOC held hearings evaluating the effectiveness of prevention measures, including training and investigations, and published a paper based on its findings.² The EEOC has now proposed new guidelines, which are awaiting finalization and publication. In addition to government guidelines, practitioners can look to guides published by law firms and professional organizations such as the Society for Human Resource Management (SHRM) (see, e.g., Amy Oppenheimer and Craig Pratt, Investigating Workplace Harassment (2003)), and publications such as the Guiding Principles for Investigators Conducting Impartial Workplace Investigations, published by the Association of Workplace Investigators (AWI) in 2012.

The DFEH guidelines, which were published in May of 2017, are the most up-to-date and complete guidelines that discuss an employer's investigative response. The DFEH developed them through its Task Force on the Prevention of Sexual Harassment in the Workplace, which was formed in 2016 to study the problem of sexual harassment, the effects of ten years of harassment prevention training in the state of California, and best practices to prevent harassment. The DFEH guidelines include some big-picture information, such as designing and implementing effective harassment programs, but also zero in on how to conduct a prompt, thorough, and fair investigation.

This article compares and contrasts the new DFEH guidelines with the 1999 EEOC guidelines, the proposed EEOC guidelines, and the AWI guiding principles.

The DFEH guidelines utilize frequently asked questions (FAQs), which address a broad range of topics, including how to respond to complaints, credibility factors, the burden of proof, and other issues. Rather than being a treatise on the law similar to the 1999 EEOC guidelines, the DFEH guidelines have a more practical application. They also provide more practical information than the...