The EEOC released its latest Enforcement Guidance for Harassment in the Workplace in April 2024, providing current recommendations for a variety of related topics including an employer’s responsibility to investigate claims of harassment based on a protected status. In the following, we will lay out key takeaways as summarized in the New England Biz Law Update article, “Consider EEOC’s new workplace investigation recommendations,” by Stephen Scott of Fisher Phillips.
The EEOC has long required employers to conduct a “prompt and adequate investigation” once they are aware of potential harassment or discrimination and has mandated that employers take “reasonable corrective action” to prevent further misconduct from occurring. The recent guidance reaffirms and clarifies these requirements.
While there is no concrete definition of a prompt investigation, the EEOC does explain that prompt is considered to be “reasonably soon” depending on the nature and severity of the allegation. For example, the EEOC states that waiting two weeks to investigate a claim of physical touching would not be considered prompt. The reason for delay is also considered when determining whether a company conducted a prompt investigation. For example, was the delay due to gathering a qualified team of investigators or was it because the allegation was not taken seriously? The EEOC also reminds employers that they are equally responsible for investigating harassment that occurred digitally or in a remote work setting.
Similarly, the EEOC does not provide a specific definition of an “adequate investigation,” but does state that it is one that is thorough enough to “arrive at a reasonably fair estimate of truth.” The EEOC asserts that an adequate investigation is one that is conducted by an impartial party, gathers information from everyone involved in an incident, and concludes with a determination of what occurred, whether it violated company policies, and a response decision.
The EEOC’s guidance goes further to clarify and amend some investigation requirements. Importantly, the EEOC omits the credibility factors that were previously cited in their 1999 guidance. While specific credibility factors are not mentioned, it is clearly still important to use best practices to determine an interviewee’s credibility. Additionally, the new guidance recommends that investigators notify the complainant and the alleged harasser of its findings at the end of an investigation. Without going into too much detail, investigators should also notify complainants that corrective action is being taken against the harasser when applicable.
Finally, the guidance urges employers to retain records of all harassment allegations and subsequent investigations. Retaining records allows employers to prove their history of providing prompt and adequate investigations. It also allows employers to analyze trends in reporting and harassment, which can be used to shape training and other anti-harassment initiatives. With Red Flag Reporting, you are provided with an ethics hotline and searchable case management system that keeps track of reports and allows investigators to analyze trends with ease!