Review EEOC’s Proposed Guidance Before Investigating Harassment

Last fall, the U.S. Equal Employment Opportunity Commission (EEOC) proposed updated enforcement guidance on harassment in the workplace. While the EEOC may make some clarifications in response to public comments, it’s not likely to make material changes, so now is a good time to digest and operationalize the proposed guidance.

The EEOC’s proposed guidance recommends specific steps that employers should take to ­prevent and remedy harassment in terms of policies, complaint procedures, training, investigations and ­corrective action. This article focuses on three of the more salient issues regarding investigations and corrective actions.

‘Prompt and Adequate’ Investigations

In prior publications, the EEOC said an employer’s investigation must be “prompt, thorough and impartial.” In the proposed guidance, the EEOC says an investigation must be only “prompt and adequate.”

Employers are well advised to substitute “adequate” for “thorough and impartial” in their policies and procedures, as well as in their decision-making relative to specific investigations. Here’s why:

The proposed guidance provides that an investigation is adequate “if it is sufficiently thorough to arrive at a reasonably fair estimate of truth.” The term thorough implies more than sufficiently thorough. You don’t want to create an expectation of “thoroughness” that you may not need to meet.

Investigating too much can be as much of a problem as investigating too little, both legally and culturally. I have seen more than a few cases where the “thoroughness” of the investigation resulted in so many employees learning of the complaint that the investigation itself harmed both the complainant and the accused.

Impartial may imply that the investigation must be conducted by a third party, independent of the employer. However, an investigation isn’t compromised just because it’s not conducted by an independent third party. In most cases, HR can be impartial.

Further, involving an outsider may escalate the matter in the mind of the complainant, who may feel the need to respond in kind. As with investigating too much, going outside can increase the likelihood of litigation and send a negative message culturally that HR does not have the credibility to be impartial.

Of course, there are times when HR will not have the credibility to be impartial—for example, when HR reports to or is subject to the authority of the accused. In these circumstances, using an outside investigator—independent of the employer—is generally recommended.

When Not to Investigate

Often, an employee requests that the employer not investigate concerns they have raised. Many employers respond by saying that all concerns must be investigated, with no exceptions. This response is an overstatement that may destroy workplace relationships and turn a relatively minor issue into a major issue. Fortunately, the EEOC’s proposed guidance, at least implicitly, recognizes this reality.

Citing appellate case law authority, the EEOC says, “It may be reasonable in some circumstances to honor the employee’s request [not to investigate] when the conduct is relatively mild.” However, the EEOC quickly adds that if the conduct is severe, it would not be reasonable to honor the employee’s request. I would add that it likely would not be reasonable to honor the employee’s request if other employees are affected by or have witnessed the conduct at issue.

Who makes the determination whether to investigate? If you say nothing, the people manager will.

But what a people manager may see as an isolated occurrence may actually be part of a more serious pattern. Further, most people managers will not have adequate knowledge of the legal and cultural issues associated with evaluating allegations of harassment.

For these and other reasons, every people manager should be required to report to HR all concerns of harassment expressed to them, regardless of the wishes of the complaining party. The determination of whether to investigate should be up to HR as it looks at the big picture.

If HR makes the decision to honor the employee’s wishes and not investigate, it is recommended that HR document the factors it considered in making its decision, to help demonstrate that its decision was a thoughtful balancing of interests.

In addition to any documentation HR may prepare for its file, HR should consider documenting the following things directly with the employee:

• The specific conduct complained of.
• The employee’s request not to investigate.
• The employer’s commitment to investigate, should the employee change their mind, with appropriate assurances of confidentiality and nonretaliation.

Corrective Action

When an employer concludes that there has been harassing conduct, the employer must take corrective action. Implicit in the foregoing focus on harassing conduct is the recommendation that employers not reach a legal conclusion that there has been unlawful harassment or wait until conduct is unlawful to take corrective action.

In its new guidance, the EEOC echoes the U.S. Supreme Court in stating that the corrective action must be “reasonably calculated to prevent further harassment” or harassing conduct. However, it’s not as simple as focusing prospectively. In determining what is reasonable, the EEOC will focus on proportionality relative to what the wrongdoer did wrong. So there should be some element of counseling or discipline when the accused, in fact, did wrong.

In this regard, again citing case law, the EEOC provides a number of examples of where one occurrence may be sufficiently severe in and of itself to constitute unlawful harassment. One example is the use of the “n-word” by a supervisor in the presence of a Black subordinate.

When an employee’s conduct is severe enough to violate the law, termination of employment may be the only defensible corrective action, legally and culturally, particularly if the wrongdoer is a manager. Employers have a heightened responsibility to protect employees from those who have been granted authority over them.  

Jonathan A. Segal is a partner at Duane Morris in Philadelphia and a SHRM columnist.