EEOC provides employers with important tips on workplace investigations: Your top 5 questions answered | Fisher Phillips

Employers recently received helpful guidance from federal labor agencies to ensure your workplace investigations go smoothly, meet legal standards, and put you in the best position to achieve a fair and reasonable outcome. The EEOC’s Workplace Harassment Enforcement Guidelines contain some valuable information about investigations that you may have missed—but we have the solution for you. Here are the top five questions about workplace investigations raised in the guidelines, and our answers to point you in the right direction.

Workplace investigations are still important

The Equal Employment Opportunity Commission (EEOC) recently released its final guidance on workplace harassment. Read our summary of key points to ensure your harassment prevention policies, procedures and training meet current standards.

While the focus of the guidance is on preventing harassment, the EEOC makes it clear that workplace investigations are more important today than ever before. Prompt, thorough and effective investigations help you in many ways, including employee morale, retention, safety and productivity. Investigations also help you mitigate legal risks by avoiding charges and lawsuits and by effectively defending those that cannot be avoided.

The guidelines make it clear that an employer has a responsibility to conduct a “prompt and appropriate investigation” when it becomes aware of potentially harassing conduct – and to take “appropriate remedial action” to prevent the inappropriate conduct from recurring.

So what are the five biggest questions that arise from this guide?

1. What does a “quick” examination look like?

The guidance explains that an investigation is expeditious if it is conducted “reasonably soon” after an employee complains or after the employer otherwise becomes aware of possible harassment. While this often depends on the specific circumstances, the guidance provides two examples to help establish investigation timelines.

• At the ‘prompt’ end of the spectrum, the guidance provides that an employer who initiates an investigation into a complaint once after it is done has acted promptly.
• At the end of the spectrum where deadlines are not met, the guideline states that an employer who waits two months to initiate an investigation without any mitigating circumstances is very likely has not acted promptly.

What about the long period between one day and two months? The guidelines say that “reasonably soon” depends on the facts and will depend on considerations such as the nature and severity of the alleged harassment and the reasons for the delay.

The EEOC explains that, for example, an employer who does nothing for employees when confronted with allegations of physical contact two weeks without explanation probably has not acted upon promptly. Moreover, from a practical perspective, few things are more difficult than having to explain the inaction of an employer (and even an individual manager) in the face of knowledge of potentially inappropriate conduct when defending against allegations or claims of workplace harassment. Conversely, employers who respond promptly to such concerns are generally well positioned to avoid or defend against such claims.

2. What does a “reasonable” investigation look like?

Investigators often have difficulty knowing how much research, review and interviewing is enough for a reliable investigation. The guidelines explain that an investigation is sufficient if it is thorough enough to “arrive at a reasonably adequate assessment of the truth.” The guidelines set out some parameters for an investigation, stating that it does not have to be a “judicial investigation, but it should be conducted by an impartial party and should seek information about its conduct from all parties involved.”

The guidelines provide an example of a insufficient investigation. In this example, the investigator was “a friend” of a supervisor at the company, was unaware of federal anti-discrimination laws, and had no experience conducting harassment investigations. After a few brief interviews, the investigator wrote a one-page memorandum concluding, without further explanation, that there was “no basis for harassment.” The guidelines state that based on these facts, the employer not carry out an appropriate investigation.

Ultimately, the investigation should be conducted in a manner that reflects a genuine effort to fairly and impartially determine what conduct occurred, whether it violated company policy, and if so, what appropriate action should be taken. There is no one-size-fits-all investigation procedure. Investigators must be appropriately trained and exercise sound judgment in the circumstances.

3. Has a hybrid work environment reduced the likelihood of workplace harassment?

Many employees are working in a hybrid environment with less in-person contact, leaving some employers wondering if the number of harassment allegations might decrease. The EEOC says probably not. In fact, harassment allegations have remained relatively consistent since the COVID-19 outbreak in 2020, and have even increased in frequency in some years since then.

The guidelines confirm that conduct does not have to be “personal” to be considered harassment. A hostile work environment claim can also include conduct that occurs in a work-related context outside of an employee’s regular work area.

Examples of remote work behaviors that can lead to harassment allegations include sexist, racist, or age-discriminatory remarks during a virtual meeting or in a group chat, and racist images visible in an employee’s background during a virtual meeting.

Given the ubiquity of hybrid and remote work since COVID, you need to train and prepare your investigators to investigate such allegations as quickly, thoroughly and effectively as any other concern or complaint of possible misconduct.

4. Were there any other notable things in the guidelines on workplace investigations?

Interestingly, the guidance lacks the previously cited credibility factors that were mentioned in the earlier Enforcement guidelines on vicarious employer liability for unlawful harassment by superiors (1999). Credibility factors identified in this earlier EEOC guidance included:

• inherent plausibility – is the statement credible at first glance?
• attitude – did the person seem to be telling the truth or lying?
• Motive for forgery – did the person have a reason to lie?
• Confirmation – Are there any corroborating witness statements or evidence?
• previous balance – Had the alleged perpetrator exhibited similar behaviour in the past?

Although these credibility factors are not included in the guidelines, investigators are still expected to be able to make credibility determinations. The guidelines state that when there are conflicting versions of relevant events, it may be necessary for the investigator to make credibility assessments to determine whether the alleged harassment actually occurred. For this reason, the guidelines instruct that the investigator conducting the investigation should be well trained in the necessary skills for interviewing witnesses and assessing credibility.

Some investigators regretted the omission of the credibility factors, believing they would have been helpful. However, given the disagreement over credibility assessments, the EEOC may have simply chosen to remain silent on certain factors.

In California, for example, state agencies and some investigative organizations generally discourage the use of behavioral testimony as a reliable factor of credibility. However, the fact remains that investigators should be adequately trained in best practices for conducting investigative interviews, including assessing credibility and establishing facts in the face of conflicting testimony.

5. Does the guide provide insight into how best to complete an investigation?

Yes, the guidelines offer two ideas for concluding an investigation.

• First inform those involved. After completing your investigation, you should inform the complainant and the alleged harasser of your decision in accordance with the Guidelines. Where appropriate, you should inform them that you will take appropriate action, subject to applicable data protection laws.

This does not mean that you should always tell the complainant what specific remedial action was taken against the alleged harasser. In general, not best practice. However, you should at least tell the complainant whether the investigation has found that the allegations are ‘founded’ or ‘unfounded’ (and, if they are substantiated, that appropriate action will be taken).

• Second, keep the records. The guidelines state that you should keep records of all harassment complaints and investigations. The idea is that these records can help you identify patterns of harassment, which can be useful for improving preventative measures, including training. These records can also be relevant for credibility assessments and disciplinary actions.

Often, the best way to prove that you responded promptly and appropriately to a complaint is to provide the investigation file and report, so this is of utmost importance – in harassment and all Workplace investigations – that investigators properly document their investigations and that you securely store investigation files after the investigation is completed.