By: Liz Rita
The EEOC issued new guidance on Harassment in the Workplace for employers and employment lawyers in April of this year. This guidance replaces the oft-quoted 1999 guidance, which stood as the EEOC’s definitive framework for employers faced with harassment complaints in the workplace. This new guidance was dramatically overdue.
For workplace investigators, the most interesting portion of the new guidance was also the part that was the least touted in the press reports on the publication: guidance on what constitutes an adequate workplace investigation.
There are five explicit requirements articulated in the EEOC’s April Guidance that should be front and center for any employer facing a harassment concern:
- Once an employer is confronted with a harassment complaint, the employer must act to stop the behavior. This obligation includes conducting a prompt and thorough investigation – AND, acting on what that investigation turns up.
While it has been established for some time that employers have an obligation to respond to complaints with a good-faith investigation, the EEOC has plainly said here that the employers response has to include this step in order to be sufficient. Not only must the employer act to investigate, it must be willing to act on what it finds.
- A workplace investigation must be “sufficiently thorough” to “arrive at a reasonably fair estimate of the truth.”
This emphasis on an investigations thoroughness has likewise always been a focus for professional investigators, but this is the first time the EEOC has plainly stated the importance of this requirement. What is “sufficiently thorough” will vary from case to case, but there are certain components that will always be needed:
- An interview with both (or all) parties and witnesses they identify.
- Necessary follow up to resolve factual discrepancies.
- A review of relevant documents, including all pertinent ESI, available social media posts, and in some cases, digital metadata.
- A rigorous credibility assessment using objective tools (see below).
In some cases, “sufficiently thorough” will require simply interviewing a few witnesses. I others, it may require a forensic analysis of metadata. The test will be as articulated above, does the data suffice to allow the investigator to “arrive at a reasonably fair estimate of the truth.”
- The investigator must be an “impartial party.”
This can be challenging for employers, who often rely on the same individuals to investigate a claim who work with employees every day on hiring, benefits, employee relations and support. Sometimes these individuals have an opinion about the complainant or respondent, or have had positive or negative interactions with one or the other. At other times, HR is asked to investigate individuals higher on the org chart than themselves. This can carry inherent pressure points to operate in favor of management, or for certain important individuals. Employers will have to do a careful assessment of available investigators for each case, and choose each assignment specifically to enhance the chances that a person can do a legitimately impartial investigation.
- If there are conflicting versions of events, the investigator must conduct a credibility assessment.
This requirement will likely pose the greatest degree of challenge for most employers, and their HR teams. Assessing credibility is not relying on a gut feeling, or watching witnesses for shifting eyes, fidgeting anchor points, sweaty palms or an absence of eye contact. Assessing witness credibility is a complex skill, involving the ability to hold facts up to an objective credibility assessment rubric, to determine fairly and accurately which version of events is more likely than not the truthful one. Assessing credibility is something that must be the subject of training, as intuition and myth will often send an investigator down the wrong path.
- Investigators “should be well-trained in the skills required for interviewing witnesses and evaluating credibility.”
It will no longer be sufficient for a person to conduct a workplace investigation without formal training. While HR professionals learn some of these skills over time, particularly in terms of interviewing, this new guidance makes clear that time in the hot seat is no longer enough to qualify a person to conduct a workplace investigation. Employers will have to evaluate the training their HR staff has received, and supplement their investigation chops with programs designed to teach interviewing skills, and, in particular, credibility analysis.
This new EEOC guidance suggests that for many small businesses, who do not have trained personnel, or for matters involving complaints against a member of management, coming to an outside professional for investigation help will be more important than ever. If an investigation is challenged in litigation, it will be very hard to support one that is done by a person without training, particularly in the complex art of credibility assessment.
Moreover, the common practice of an attorney conducting the investigation for their client is likely to come under even greater scrutiny. Such an attorney always risked being conflicted out of representing the client in the matter, because of becoming a fact witness themselves. Now an additional hurdle has been placed on the track by the EEOC, who will ask if the attorney is truly “impartial.”
To read this new guidance, go here. And as always, if you have a question about an investigation your organization has done (or needs to do) reach out! We are always happy to brainstorm with you off the clock.