It is the policy of the state of

California that:
(A) Employees who, in good faith,
complain about harassment in the
workplace should not be penalized
for complaining.
(B) Employees who harass others in
the workplace should not be
rewarded for their misconduct.
(C) Remedies for harassment in the
workplace should be effective and
serve as a deterrent to future acts of
misconduct.
(D) An employees status as spouse D is necessary because we know of
of an employer, supervisor, or actual cases where DFEH refused to
manager should not affect the right take action to protect an owner's
of that employee to a workplace spouse when the owner had an affair
free from a hostile working with a subordinate employee and
environment; entering into a engaged in quid pro quo favoritism to
contract of marriage does not mean he detriment of the spouse and other
that a person gives up his or her employees. The affair also created a
right to be free from harassment hostile environment for the spouse
and/or discrimination in the and other employees.
workplace or to oppose unlawful
practices pursuant to California
Government Code Section 12940(h).
(E) The reasonable steps required
by Section 12940(j) of the
Government Code to prevent
workplace harassment from
occurring shall include but not be
limited to the following:

In determining whether supervisory

employees have taken all reasonable
steps to prevent harassment from
occurring, the following shall be
considered:
(i) Whether management personnel
acted in good faith in making
employment-related decisions.
(ii) Whether management employees
undertook an investigation that was
reasonable and appropriate under
the circumstances, including a
consideration of the following
issues:
(iii) If the investigator was an
employee, whether the investigator
was sufficiently unbiased to
conduct a fair, objective, and
truthful investigation and whether
the investigator implemented
adequate safeguards to insure
employee privacy.
(iv) If the investigator was an
independent contractor hired by the
employer the investigator was a
licensed private investigator
pursuant to Article 3 (commencing
with Section 7520) of Chapter 11.3
of Division 3 of the Business and
Professions Code and complied with
subdivisions (a) and (b) of Section
7539 of the Business and Professions
Code.
(v) Whether the background,
education, training, and experience
of the investigator complied with
industry standards of competence
for the investigation of harassment.
(vi) Whether allegations of prior
misconduct by the alleged
perpetrator were investigated, both
before he/she was hired and after
allegations of misconduct were
received.
(vii) Whether, after the investigation
and prior to taking corrective
action, managers had a good faith,
reasonable belief that an employee
engaged in misconduct and took
From Silva v Lucky Stores, Inc. (1998) 65 Cal.App.4th
256 An effect of Silva was for irresponsible employers
to rely upon incompetents to perform
their investigations. In many cases, a manager with
no experience at investigation is used. Since their
only concept of how to perform an investigation is
usually what the see on television in NYPD Blue or
Law & Order, rather than reasonable fact-finding
exercises, these efforts tend to turn into hostile
environments for the victim as well as the
perpetrator and serve no legitimate purpose.
Silva also spurred a cottage industry of unlicensed
Human Resources Consultants masquerading as
experienced and competent investigators,
especially for sexual harassment investigations.
Their haphazard inquiries have lead to an increasing
record of fiascoes for the employers themselves and
generally have gotten the employers sued. The
Bureau of Security & Investigative Services has
issued cease and desist orders in a number of such
cases for unlicensed investigative activity. Had these
been situations of unlicensed people doing a proper
job, they never would have come to the attention of
the agency in the first place; the agency learned
about them only when somebody else who was
licensed, experienced and competent had to be
brought in by one side or the other to clean up the
mess they'd left behind.
This covers whether there was a
proper pre-employment background
investigation to weed out obviously
unfit candidates.
Based on actual cases reported to
corrective action based on NOW
reasonable conclusions supported by
substantial evidence that was not
trivial, arbitrary, capricious, or
pretextual.
(viii) Whether the corrective action
taken by management was
reasonable under the circumstances,
including a consideration of the
following issues:
(ix) Whether actual discipline was
imposed on the perpetrator of
harassment, and not merely a
change in the perpetrator's duties or
working hours.
(x) Whether the supervisor changed
the duties or working hours of the
perpetrator or the victim.
(xi) Whether, if the supervisor
changed the victim's duties or
working hours, the change was
satisfactory to, and did not cause
annoyance or hardship to, the
victim.
(xii) Whether, if the supervisor
changed the duties or working hours
of the perpetrator, the change was,
in fact, corrective action that the
perpetrator did not welcome.
(xiii) Whether the corrective action
was reasonable in light of any past
misconduct.
(xiv) Whether any prior corrective
action had been ineffective in
deterring the current misconduct.
(xv) Whether an alternative to the
action taken by the supervisor
would have imposed a significant
economic burden on the employer.
(xvi) Whether the company was in
compliance with section 12950.1 of
the Government Code.
(F) The provisions of (E) shall not
be construed to prohibit, prevent,
or interfere with a supervisors
decision to take interim measures,
pending the outcome of an
investigation conducted with all
deliberate speed, in order to
separate the person alleging
harassment from the alleged
perpetrator of harassment.

In civil actions brought under this
section, the court, in its discretion,
may shall award to the prevailing
party, including the department,
reasonable attorneys fees and costs,
including expert witness fees and
investigative fees and costs when
the investigation is performed by a
licensed private investigator
pursuant to Article 3 (commencing
with Section 7520) of Chapter 11.3
of Division 3 of the Business and
Professions Code and complied with
subdivisions (a) and (b) of Section
7539 of the Business and Professions
Code.
Currently investigative fees are not
recoverable, imposing an enormous
burden on Plaintiffs and their counsel.
It also gives a lopsided advantage to
the defense whose bills are funded by
insurance or deep pcket defendants
like Harvey Weinstein, who reportedly
spent $600,000 with one investigative
firm alone (out of two) that wasn't
even licensed, to investigate Actress
Rose McGowan.

(2) if a corporate director or officer Existing case law imposes these duties
is named as a defendant in any on officers and directors. This
action brought pursuant to this provision encourages them to take
section for negligence it shall be their duties seriously.
deemed to be negligence per se if
that officer or director breached
their duties to the corporation
including but not limited to their
fiduciary duty, their duty of care,
their duty of loyalty, and or their
duty of reasonable inquiry in such a
manner that harassment or
discrimination was allowed to occur
or to continue after they reasonably
knew or should have known that it
was occurring. Expert witness
testimony shall be admissible to
determine whether officers and/or
directors breached their legal duties
in this manner.

Addition of Section 340.11 to Code of This effectively tolls the existing

Civil Procedure to toll statute of statutes of limitations in two ways. If
limitations somebody like Roy Moore or Donald
Trump publicly calls somebody a liar it
340.11 now re-opens damage actions in
addition to the new defamation for
In any civil action for recovery of the original alleged offenses. If that
damages suffered as a result of is not the case but publicity brings
violations of Section 12940(j) forth multiple accusers, the statute is
Government Code, Sections 51.9, tolled if at least one plaintiff passes a
52.4, 52.45, 52.5 Civil Code the polygraph, as a safeguard when the
time for commencement of the accusations may be very old.
action shall be the later of the
following:

(a) Within three years from the date

of the last act or omission by the
defendant against the plaintiff.

(b) Within three years from the date

the plaintiff discovers or reasonably
should have discovered that an
injury or illness resulted from an act
or omission by the defendant against
the plaintiff.

(c) Within one year from the date

of any public denial of the conduct
by a defendant or any private denial
communicated to third parties.

(d) Within one year from the date

of the public reporting by mass
media of the accounts and/or
accusations of other victims have
been made alleging the same or
similar conduct.

(e) In cases brought pursuant to

sub-section (d) above the Complaint
shall be filed with a declaration
under penalty of perjury executed
by a polygraph examiner who is a
member of the American Polygraph
Association who attests that (1) at
least one plaintiff was examined in
accordance with any applicable APA
policies, (2) that the plaintiff
received a conclusive result, and (3)
the plaintiff's responses to
substantive questions concerning
facts disputed or which could be
reasonably expected to be disputed
by a defendant are corroborated by
their examination to be truthful.
Amend Section 351.1 Evidence Code:
(a) Notwithstanding any other
provision of law, the results of a
polygraph examination, the opinion of
a polygraph examiner, or any
reference to an offer to take, failure
to take, or taking of a polygraph
examination, shall not be admitted
into evidence in any criminal
proceeding, including pretrial and
post conviction motions and hearings,
or in any trial or hearing of a juvenile
for a criminal offense, whether heard
in juvenile or adult court, unless all
parties stipulate to the admission of
such results.
(b) Nothing in this section is intended
to exclude from evidence statements
made during a polygraph examination
which are otherwise admissible.
(c) Mindful of the decision in
Witherspoon v. Superior Court
(1982) 133 Cal.App.3d 24 and the
legislation that originally led to the
enactment of the provision of sub-
For a brief three year period
California regulated polygraph
services with a board of polygraph
examiners. That bill sunsetting and
was not renewed. Lie detection is a
relatively small and largely self
regulating profession with a single
large organization setting it standards
and policies.
Rather than set up a regulatory
scheme to govern the admissibility of
polygraph California should simply set
the standard as being that of the
American Polygraph Association.
Many sexual harassment cases
inevitably come down to he said she
said swearing contests that can only
be resolved through the use of a lie
detector. Anita Hill took one and past
demonstrating the veracity of her
claims against Clarence Thomas but
the United States Senate refused to
admit that information in its
proceedings. Recently Roy Moore
supporter, the state auditor of
Alabama publicly challenged the
sections (a) and (b), subject to the
standards of Daubert v. Merrell Dow
Pharmaceuticals, 509 U.S. 579
(1993) polygraph examination
evidence and expert testimony is
admissible in non-criminal Superior
Court, administrative, and
alternative dispute proceedings.
(d) To be admissible the polygraph
examiner must be a member of the
American Polygraph Association and
the examination shall be conducted
in accordance with any applicable
APA policies.
women accusing Moore to submit to
polygraph tests.
Generally speaking sexual harassment
takes place behind closed doors,
literally. It is not the kind of behavior
that the perpetrator engages in in
front of witnesses if they are smart.
Polygraph can be an effective tool for
the investigation and disposition of
these kinds of complaints but only if
the rigid APA standards are followed.
As an example of why APA discipline is
needed to ensure that the public is
protected and truth is the real goal a
number of low cost high volume
practitioners in California are
unscrupulous operators. In one case,
one of the highest volume low cost
examiners is a former private
investigator's license was revoked due
to dishonesty and corrupt practices.