Selected Legal Developments

Employer’s Obligation
to Investigate

For a published article relating to the obligation to conduct workplace investigations, please contact Michael Robbins at

Conducting Discovery
on Investigations

For a paper relating to conducting discovery on workplace investigations, please contact Michael Robbins at

Standard Practices for
Workplace Investigations

For a a published article on standard practices for  conducting workplace investigations, please contact Michael Robbins at

View seminars on some of these issues

Developments Relating to Workplace Investigations

Employee Misconduct

Recent cases require that claims of employee workplace misconduct be supported by an appropriate investigation — particularly when an implied contract is involved (see below for discrimination claims):


California and Federal laws require that an employer investigate when discrimination, harassment, or retaliation allegations arise:

It is a violation of the California Fair Employment and Housing Act (FEHA) for an employer “to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” Cal. Gov’t Code § 12940 (k). This mandates an investigation in two ways. First, if part of preventing discrimination is having anti-discrimination policies and if those policies call for an investigation, and if the employer does not follow its own policies by investigating, then its policy is meaningless. This then renders attempts to prevent discrimination meaningless.

Second, the purpose of an investigation is to discover the facts as to the person’s complaints and to insure that no further incidents occur, both as to that person and as to others. In other words, if a company knows that a person might be committing discrimination, it wants to make sure that he/she does not continue to do so. Clearly, conducting an investigation to insure that a person alleged to have discriminated against one person does not do so as to others is part of taking all reasonable steps necessary to prevent discrimination from occurring.

Thus, the position of the California Department of Fair Employment and Housing (DFEH) is that an employer is required to conduct an investigation as to any harassment claims about which it may be aware. See, DFEH v. Calolina Ginning Co. Inc., Case No. E96-97; H-0676-00-E; E96-97; H-0676-01; 99-01 (1999) — The FEHA “…obligates employers to make [an] immediate and fair investigation of harassment complaints.”

The EEOC’s position also is that under Title VII of the Civil Rights Act of 1964, a duty to investigate exists — “When an employee complains to management about alleged harassment, the employer is obligated to investigate the allegation….” Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (June 1999). (Hereinafter, “1999 Enforcement Guidance”). See also, EEOC Policy Guidance on Current Issues of Sexual Harassment (March 1990) (“When an employer receives a complaint or otherwise learns of alleged sexual harassment in the workplace, the employer should investigate promptly and thoroughly.”).

The Courts have confirmed that duty under the FEHA and Title VII:


”Under FEHA, an employer…has an obligation to ‘take all reasonable steps necessary to prevent discrimination and harassment from occurring’ in the workplace. [Citations omitted.] The affirmative and mandatory duty to ensure a discrimination-free work environment requires the employer to conduct a prompt investigation of a discrimination claim.” American Airlines v. Superior Court, 114 Cal. App. 4th 881; 8 Cal. Rptr. 3d 146 (2003), rev. den. (2004). See also, Mathieu v. Norrell Corp., 115 Cal. App. 4th 1174 (2nd Dist, 2004) (“The most significant measure an employer can take in response to a sexual harassment complaint is to launch a prompt investigation to determine whether the complaint is justified — applying to harassment and retaliation) and Cellini v. Harcourt Brace & Co., 51 F. Supp. 2d 1028 (S.D. Cal. 1999) (Under FEHA — “Defendants [had a] clear legal duty to investigate plaintiff’s sexual harassment claim”).

Although most courts have considered the obligation in harassment cases, it is clear that the obligation applies to other forms of discrimination as well. For example, in a race discrimination case, Northrop v. WCAB, 103 Cal. App. 4th 1021 (2002) (“Prompt investigation of a discrimination claim is a necessary step by which an employer meets its obligation to ensure a discrimination-free work environment.” And “an employer, faced with an accusation made by a coworker that a supervisor has engaged in racial discrimination against a subordinate, has a legal obligation to investigate that claim.”). Also, in a retaliation matter. See, Mathieu v. Norrell Corp, supra.

Title VII

The position of the Courts is the same under Title VII — that an employer is obligated to investigate. Hatley v. Hilton Hotels, 308 F.3d 473 (5th Cir. 2002); Watson v. Blue Circle, Inc., 324 F.3d 1252 (11th Cir. 2003); Bator v. State of Hawaii, 39 F.3d 1021 (9th Cir. 1994) and Steiner v. Showboat Operating Co., 25 F.3d 1459 (9th Cir. 1994), cert. den. (1995). See also, Malik v. Carrier Corp., 202 F.3d 97, 81 FEP 1275 (2d Cir. 2000). (Employer’s investigation of sexual harassment complaint is not a gratuitous or optional undertaking but required by law) and Sarro v. City of Sacramento, 78 F. Supp. 2d 1057 (E.D. Cal. 1999); Accord, Fuller v. City of Oakland, 47 F. 3d. 1522 (9th Cir. 1995) and Nichols v. Azteca Rest., 256 F. 3d 864 (9th Cir. 2001).