The EEOC Endorses Independent Workplace Investigators and Culture Audits

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3 people in an interview during a workplace investigation

For the first time in 25 years, the Equal Employment Opportunity Commission (“EEOC”) has issued updated enforcement guidance on workplace harassment. It elucidates the kinds of behavior that constitute harassment under the law and recommends what our firm has known all along: businesses should engage independent, experienced workplace investigators to analyze potential harassment at work.

What’s In the Guidance?

Years in the making and stalled under prior administrations, the new Enforcement Guidance on Harassment in the Workplace (the “Guidance”) was finally issued on April 29, 2024. It reflects recent developments in case law and recognizes that “harassing conduct remains a serious workplace problem: more than one-third of charges of discrimination received by EEOC include allegations of unlawful harassment based on race, disability, sex or another protected characteristic.”

Sexual harassment, as well as harassment related to protected characteristics, such as race, age, and disability, is prohibited by federal laws such as Title VII and the Americans with Disabilities Act. The Guidance discusses the extension of Title VII sex discrimination protections to gay and transgender workers (as held by Bostock v. Clayton County, 140 S. Ct. 1731 (2020)) and memorializes developments recognizing particular characteristics as protected (e.g., hair texture insofar as it relates to one’s race). This document supersedes five prior guidance documents issued by the EEOC on workplace harassment.

While not binding precedent, the lengthy document provides an insightful framework for legal analysis of both “standards for harassment and employer liability applicable to claims of harassment” under the laws enforced by EEOC. This information is useful in helping businesses craft sound policies to prevent workplace harassment. Additionally, the Guidance is useful to those charged with conducting intra-corporate investigations of claims of harassment to determine whether employee complaints rise to the level of harassment under the law.

The EEOC Clarifies What Workplace Harassment Is

The Guidance focuses on the three prongs of a harassment claim that must be satisfied in order to meet relevant federal standards:

  1. Covered Bases and Causation: evaluating whether the complained-of conduct was based on a person’s protected characteristic.
  2. Discrimination with Respect to a Term, Condition or Privilege of Employment: evaluating whether the conduct resulted in discrimination that impacted a term, condition, or privilege of employment.
  3. Liability: whether there is a basis to hold an employer liable for the harassing conduct.

The Guidance also provides numerous (77) examples to illustrate what harassment may look like in the workplace, many of which are based upon complaints litigated in federal courts. For example, the document states that comments based on stereotypes about older workers, mocking a person’s accent, or sharing pornographic images (including AI-generated photographs) can all constitute harassment under the law. The Guidance reaffirms that harassers can be managers, coworkers, or even clients of the employer.

The document further recommends that all employers have an anti-harassment policy, institute a complaint process, and provide training on harassment prevention, and it outlines features of these policies.

The EEOC Recommends Experienced Workplace Investigators

We believe the Commission’s statements about workplace investigations and culture assessments are critical and likely portend how courts will analyze harassment claims in the future.

The EEOC notes that once an employer receives notice of harassing behavior, it is responsible for taking corrective action to prevent it from continuing. The Guidance states that an employer must conduct “a prompt and adequate investigation” and take “appropriate action based on the findings of that investigation.” Failure to investigate may indicate an employer ignored illegal harassment, potentially triggering liability.

Moreover, the EEOC recognizes the need for expertise in this area: “whoever conducts the investigation should be well-trained in the skills required for interviewing witnesses and evaluating credibility.” We believe that the Commission is communicating what we have learned through decades of practice in this area: an investigation of harassment is serious and has a myriad of implications for a business. As a result, an investigation should not be approached in a haphazard manner, or conducted by untrained personnel on a one-off basis. After all, the quality of an employer’s investigation into misconduct bears on whether a court will ultimately determine whether it is liable for that behavior.

The manner in which an investigation is conducted also sends a clear message (if even unwittingly) about an employer’s commitment to the well-being of its workforce, both to the employee lodging the complaint and to those who know of it. How an investigation is performed also sends signals to those who engage in harassing behaviors: either they will be subjected to discipline as the result of a thorough investigation, or they will be allowed to harass with impunity because an investigation was not sufficiently thorough or serious. If an employer is truly committed to a workplace free from harassment, it will allocate time, effort, and resources accordingly–and workers will take notice.

The EEOC Affirms Using Culture Audits

It is encouraging to see the Guidance affirm the use of climate surveys (what we term “culture audits”), which serve to “determine whether employees believe that harassment exists in the workplace and is tolerated” and to “reduce the likelihood of unlawful harassment.” A culture audit is a type of investigation that evaluates a workplace culture overall, as opposed to an inquiry that responds to a particular complaint of wrongdoing. The EEOC recommends that such assessments be repeated to ensure that measures taken to address harassment have been implemented and are successful.

We firmly believe that these assessments provide an opportunity to root out unacceptable behavior. In fact, culture audits can help uncover the beginnings of a problem long before it incurs legal liability or requires crisis management. Further, culture audits support the positive aspects of a culture, such as respectfulness and accountability, enabling a healthy workplace to flourish and thrive.

If your business questioned the utility of a workplace investigation, experienced investigators, or culture audits, the EEOC’s new Guidance is a clear endorsement of all three. These aspects of employee relations are critical to creating and nurturing a healthy workplace culture and to avoiding legal liability.