EEOC tightens scrutiny on workplace harassment investigations

Employers should prepare for the Equal Employment Opportunity Commission to pay more attention to the caliber of their internal investigations into workplace harassment, some employment lawyers said.

Employers whose internal probes of workplace harassment complaints are not found to be sufficiently thorough and impartial could be more likely to face an enforcement action or get hit with orders to undergo remedial training on how to conduct an investigation, lawyers said.

‘It adds fuel to the fire’

The newly articulated standards for employers looking into harassment allegations were contained in a guide on workplace harassment that was issued in April, but some employment lawyers said the report’s references to investigation standards drew little notice amid attention focusing on parts of the report that discuss abortion and LGBTQ issues.

For employers facing legal action over harassment based on a protected characteristic, a faulty investigation could make a bad situation even worse, said Frances Haas, an employment lawyer at Nyemaster Goode in Cedar Rapids, Iowa.

“If the EEOC sees that the investigation was a sham, now it’s going to use this new standard to discern that something was mishandled with respect to the harassment issue. Courts even view an inadequate investigation as evidence of discriminatory pretext in some cases. So, it adds fuel to the fire,” Haas said.

The EEOC’s Enforcement Guidance on Harassment in the Workplace calls on employers to conduct a prompt and adequate investigation as part of its corrective action after receiving notice of potentially harassing conduct.

Once an employer has notice of potentially harassing conduct, it is responsible for taking reasonable corrective action to prevent the conduct from continuing. This includes conducting a prompt and adequate investigation and taking appropriate action based on the findings of that investigation.

According to the EEOC guidance, the investigation must be “sufficiently thorough” to “arrive at a reasonably fair estimate of the truth.” It must be conducted by an “impartial party” and if there are “conflicting versions of relevant events,” the EEOC will expect to see the investigator “make credibility assessments to determine whether the harassment in fact occurred.” In addition, investigators “should be well-trained in the skills required for interviewing witnesses and evaluating credibility.”

Haas said the EEOC guidance on internal investigations applies only to harassment claims, but that means harassment under the various anti-discrimination statutes—including race, religion, disabilities and age discrimination, among others.

“I do think this concept has legs. And what I mean by that is, in looking at recent cases and how courts are evaluating the quality of investigations in other contexts, I am starting to see some courts apply the same concepts from the guidance,”  she said.

In addition, the EEOC said those carrying out such investigations should not only be experienced, but well-trained in such matters, she said.

“A lot of HR professionals develop their skills over time, just like any professional, and the EEOC is saying it’s not enough to just have done this many times–you have to have specific training,” Haas said.

Credibility

Haas said some employers might have a hard time complying with the EEOC’s requirement that they evaluate the credibility of of witnesses. Human resources managers who investigate harassment claims are often good at conducting interviews but evaluating credibility is much more difficult, Haas said.

Kelly Ann Bird, a labor and employment lawyer at Gibbons in Newark, New Jersey, likewise thinks making credibility assessments when faced with conflicting versions of events can be a challenge. She likens it to solving a Rubik’s cube.

“You have to turn things so many ways until they click into place and see where is the gap in the story, where is the gap in the versions of events? Making that credibility assessment as to the crux of the complaint can be very challenging,” Bird said.

Bird acknowledges that smaller companies with no dedicated human resources manager and limited resources to devote to harassment investigations might need to outsource that job. Particularly challenging to investigate are harassment complaints by a subordinate against their supervisor or a member of management, rather than a peer to peer complaint.

The #MeToo movement of 2017 and 2018 demonstrated that many internal investigations of harassment lacked credibility, with some managers “investigating people they had lunch with every day,” Bird said.

“It does cost money to hire a third party to do an investigation, but to the extent there is the ability and financial resources to hire a third party when you have a complaint about someone at the highest level, your CEO or your CFO, I think it’s worth it,” Bird said.

Read more: ’Fire all the bullets now’: EEOC enforcements surge

Lawyer as witness

Paul Scheck, an employment lawyer at Shutts & Bowen in Orlando, Florida, said the EEOC’s guidance on investigating workplace harassment largely tracks the approach he’s used throughout his career.

The agency says that such complaints should receive a “prompt and remedial” response, but what that means will vary depending on the circumstances, including the number of people involved, the complexity of the issues, and any scheduling problems, he said.

An employer should make such complaints “a top priority,” address them as soon as reasonable possible, and notify the complaining party of any unforeseen delay, Scheck said in an email.

Scheck said that a human resources manager who is not accused of misconduct is the ideal person to conduct the investigation, with an office manager with training in human resources issues the next best option. Hiring an outside human resources consultant is the next best option, with hiring legal counsel to conduct the investigation the final option.

“This, however, makes the investigating attorney a witness to the investigative process, and may later disqualify that attorney and/or the firm from defending the company in any subsequent lawsuit, thus this is why companies often want to avoid this,” Scheck said.

Making a credibility assessment is often a portion of the investigator’s role, Scheck said. Based on the information gathered and the credibility assessment, an appropriate disciplinary action administered, ranging from no action to termination, based on the circumstances, he said.

Scheck added, “It should be emphasized to all participants, especially the complaining party, that the company will not engage in any type of retaliation for making the complaint, and that the employee should feel free to bring additional complaints if the behavior continues.”