Commentary: Consider EEOC’s workplace investigation guidance

By Stephen Scott      

It is my hunch that many of you have conducted some type of internal investigation into harassment or discrimination. Yet that prior experience does not negate the need to listen to the advice of the Equal Employment Opportunity Commission for handling workplace investigations.

The EEOC‘s guidance makes clear that an employer is responsible for conducting a “prompt and adequate investigation” once it has notice of potentially harassing conduct and for taking “reasonable corrective action” to prevent any improper conduct from reoccurring. Outlined below are five key takeaways from the guidance.

• How to conduct a prompt investigation: The guidance explains that an investigation is prompt if it is conducted “reasonably soon” after an employee complains or the employer otherwise has notice of possible harassment. While this often depends on the specific circumstances, the guidance gives two examples to help establish investigation timelines: (1) prompt is one day after the complaint and (2) not prompt is two months after the complaint. For everything in between, the EEOC says it is fact-sensitive and depends on such considerations as the nature and severity of the alleged harassment and the reasons for delay. (For example, when faced with allegations of physical touching, an employer that does nothing for two weeks without explanation likely has not acted promptly, according to the EEOC.)
• What is an adequate investigation? The guidance explains that an investigation is adequate if it is sufficiently thorough to “arrive at a reasonably fair estimate of truth.” The guidance puts some parameters on an investigation and says that it need not entail a “trial-type investigation, but it should be conducted by an impartial party and seek information about the conduct from all parties involved with a genuine effort to fairly and impartially determine what conduct occurred, whether it violated a company policy, and if so, what appropriate action should be taken.
• What about hybrid work? The guidance confirms that conduct does not have to be “in person” to constitute harassment. A hostile work environment claim can include conduct that occurs in a work-related context outside of an employee’s regular workspace, and the EEOC indicated there has been an uptick since the start of the COVID-19 pandemic. Given how ubiquitous hybrid and remote work has become post-pandemic, employers should train and prepare their investigators to look into claims like these just as promptly, thoroughly and effectively as they would with any other concern or complaint of potential misconduct.
• Was there anything else notable about workplace investigations? Interestingly, the guidance omits previously cited credibility factors contained in the former “Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors” (1999). That said, the fact remains that investigators should be properly trained in best practices for conducting investigatory interviews, including assessing credibility and making factual determinations in the face of conflicting accounts.
• But how do we conclude the investigation? The guidance provides two key recommendations for concluding an investigation. First, it advises that upon completing an investigation, an employer should inform both the complainant and the alleged harasser of its findings. When appropriate, the employer should also notify them that appropriate actions will be taken within the limits of privacy laws. However, this does not mean employers should always disclose the specific corrective actions taken against the alleged harasser because this is generally not considered best practice. At a minimum, the employer should inform the complainant whether the investigation concluded the allegations were “substantiated” or “unsubstantiated” (and, if substantiated, that appropriate action will follow).

Second, the guidance emphasizes the importance of retaining records of all harassment complaints and investigations. These records can help identify patterns of harassment, which can improve preventive measures, including training. They also are valuable for credibility assessments and disciplinary actions. For an employer to demonstrate that it responded promptly and appropriately to a complaint, it is often necessary to produce the investigation file and report. Therefore, it is crucial that investigators properly document their investigations and securely store the files once investigations are completed.

These times can be challenging for employers, but they also present a valuable opportunity to advance an organization. Just because you’ve done something once does not mean you should pass up the advice of an expert – or in this case the EEOC.

Stephen Scott practices employment law as a partner at the Portland, Oregon, office of Fisher Phillips.

This commentary was originally published in New England Biz Law Update.