THE DFEH INVESTIGATIVE PROCESS Pointers on How to Conduct Effective Internal Investigations

1. THE DFEH INVESTIGATIVE PROCESSPointers on How to Conduct Effective Internal Investigations Tim Muscat | Chief of Enforcement California Department of Fair Employment and Housing

2. Overview of the DFEH Investigative Process

3. Administrative Complaint • Any person claiming to be aggrieved by an alleged unlawful employment practice may file a verified complaint for investigation with the DFEH. (Gov. Code, §§ 12960, 12963.) • Filing an administrative complaint with the DFEH within one year of an alleged unlawful practice (Gov. Code, § 12960, subd. (d)), and receipt of a right-to-sue (Gov. Code, § 12965, subd. (b)), are prerequisites to filing a civil action for employment discrimination under the FEHA.

4. Exhaustion of Administrative Remedy • An aggrieved party may forgo having his or her complaint investigated by the DFEH and instead request an immediate right-to-sue from the Department. • An immediate right-to-sue may be obtained from the DFEH online at www.dfeh.ca.gov. • Only complainants represented by counsel are encouraged to obtain a right-to-sue online.

5. New Appointment & Intake Procedures • Before the DFEH can accept a complaint for investigation, a complainant must undergo an intake interview. • An appointment for an intake interview can be made online at www.dfeh.ca.gov or by calling (800) 884-1684. • Telephonic intake interviews have replaced in-person intake interviews.

6. Investigative Discovery The DFEH has unilateral discovery rights during the investigative process which permit the DFEH to issue subpoenas (Gov. Code, § 12963.1), serve written interrogatories and requests for production of documents (Gov. Code, §§ 12963.2, 12963.4) and depose witnesses (Gov. Code, § 12963.3).

7. Court Order Compelling Response to Investigative Discovery If an individual or organization fails to comply with a subpoena, interrogatory, request for production, or examination under oath by refusing to respond fully or providing only objections, the DFEH may file a petition with a superior court for an order compelling compliance with the discovery, naming the individual or organization that failed to comply as the respondent. (Gov. Code, § 12963.5.)

8. Deadline to Issue Accusation Extended The period of time within which the Department may issue an accusation is extended by the length of time between the filing of the petition and the filing by the DFEH of a certified statement indicating the respondent's compliance with the court’s order compelling respondent to respond. (Gov. Code, §12963.5, subd. (f).)

9. Pre-Accusation Resolution Opportunities • Predetermination Settlement Negotiations. • Mediation Division. • Conciliation Conference – New Procedure: • Conducted whenever possible with both the complainant and respondent present.

10. Accusation • If, after investigation, the DFEH determines there is sufficient evidence to prove a violation of the FEHA and the complaint has not been resolved, the DFEH files an accusation with the FEHC. (Gov. Code, § 12965.) • The respondent has a statutory right to a hearing within 90 days of the filing of the accusation, unless the respondent and the DFEH stipulate to a longer time frame. (Gov. Code, § 12968; Cal. Code Regs., tit. 2, § 7429, subd. (c)(1).)

11. Civil Litigation Opt-Out • If an accusation includes a prayer for emotional distress damages or an administrative fine, within 30 days of service of the accusation the respondent may elect to transfer proceedings to court. (Gov. Code, § 12965, subd. (c)(1).) • If no election to transfer is made and a settlement has not been reached, the Department will prosecute the accusation in a hearing before an administrative law judge employed by the Commission.

12. DFEH Results in 2007-2011

13. Pointers on Conducting Effective Internal Investigations

14. Pointer 1: Take Appropriate Steps to Avoid Complaints • Develop California based anti-discrimination policies. • Conduct interesting, interactive, and mandatory training. • Create easily understood complaint process. • Encourage a “be nice” and “accountable” management style.

15. Pointer 2: Don’t Overreact in Enforcing a “Zero Tolerance” Policy • Maintain a Wide Range of Investigative/Management Options: • Verbal Counseling. • Written Counseling. • Retraining. • Full Investigation.

16. Pointer 3: Thoughtfully Consider Who Will Conduct Investigation • Insider or Outsider Investigation? Consider the following: • Experience. • Ability to make independent credibility assessments. • Professionalism and neutrality. • Availability. • Ability to testify as witness.

17. Pointer 4: Understand Proper Scope of Discrimination Investigation • Know legal elements of discrimination claim at issue. Focus on existence or non-existence of facts for each legal element. • Be aware of need to investigate claims under adopted equal opportunity/diversity policies that go beyond the law.

18. Pointer 5: Avoid Allegations of a “White-Wash” • Take complaining employee’s complaints seriously. • Interview all of the complaining employee’s available witnesses. • Conduct interviews quickly and efficiently. • Be comprehensive. • Ask for corroborating documents.

19. Pointer 6: Don’t Assume a Manager’s Stated Non-Discriminatory Defense is True • Maintain neutrality in the investigative process between managers and rank and file employees. • Interview all of the manager’s available witnesses. • Conduct interviews quickly and efficiently. • Be comprehensive. • Ask for corroborating documents. • Ask how similarly situated employees treated for similar conduct.

20. Pointer 7: Prioritize and Always Move Forward • Focus first on key witnesses. • Special attention to “uninvolved” witnesses. • Delay undermines relevancy of the investigation: • Memories fade. • Witnesses might leave. • Evidence lost/destroyed.

21. Pointer 8: Make Credibility Determinations When Necessary • Investigations often develop two competing set of facts. In these situations, assessing credibility is often essential for determining which set is likely true. • Consider the following in making these determinations: • Corroborating evidence. • Contradictory evidence. • Lies/exaggerations. • Persuasiveness of evidence.

22. Pointer 9: Provide Both Sides with Opportunity to Rebut Evidence • Confront opposing sides with fact-based positions. • Ask for any additional evidence to corroborate each side’s position. • Do not take sides or become emotionally involved. • Be prepared to have your neutrality questioned.

23. Pointer 10: Prepare Report with Fact Based Findings • Make findings based on facts. • Fairly summarize the positions of both sides. • Explain findings based upon: • Corroborating witnesses and/or documents. • Contradictory evidence. • Lies/exaggerations. • Persuasiveness of evidence. • Credibility of each side.

24. Pointer 11: Be Prepared to Cooperate With DFEH • Treat DFEH consultant as an impartial, neutral investigator. • Respond to requests for information. • Consider using the DFEH investigation process as an opportunity to achieve win-win settlements.

25. Pointer 12: Be Prepared to Deliver “Bad News” • Not really bad because the employer benefits from ending discriminatory practices. • Uncovering discriminatory practices will assist in retaining valued employees and avoiding costly litigation. • Creates early settlement opportunities: • Severance Agreements. • Pre-litigation mediation.

26. THANK YOU. www.dfeh.ca.gov contact.center@dfeh.ca.gov (800) 884-1684 Videophone (916) 226-5285