California employers have an affirmative duty to take reasonable steps to prevent harassment or discrimination from occurring (Government Code 12940(k). Employers’ duty to prevent discrimination requires that employer respond promptly and properly to allegations of harassment or discrimination that are known to it (Trujillo v. North County Transit District (1998)). And it applies equally to harassment and discrimination claim.
Employers should remember that they have a duty to investigate harassment or discrimination regardless of whether these accusations appear credible or believable to them, because mere failure to investigate can give rise to a claim and potential liability. It has been held that one way that an employee can establish employer liability for harassment or discrimination is by showing that an employer breached its legal duty to investigate. Employers have a duty to respond to harassing conduct correct the harm inflicted, and take all reasonable steps to insure that the harassment does not recur and that the victim is not retaliated against. ((Fisher v San Pedro Peninsula Hospital (1989)).
The terms “reasonable” steps and responding “promptly” and “properly” are inherently vague and relative, which creates natural space for disagreement and litigation. While a victim of discrimination might expect an employer to immediately discipline or fire a harasser, “promptly” doesn’t always mean immediately, and taking “reasonable” steps does not necessarily mean firing. A certain degree of rational approach and common sense should be applied to how each accusation should be handled in light of its unique and specific circumstances in order to make the process as efficient and amicable as possible.