When an employer has notice of unlawful harassment by both employees or nonemployees, it must act “reasonably” to correct the harassment.

The Equal Employment Opportunity Commission’s (EEOC) updated Enforcement Guidance on Harassment in the Workplace, while not the law, represents the EEOC’s interpretation of federal law and provides important, risk-minimizing insight for employers who have received complaints of harassment. Indeed, instituting a prompt and thorough investigation upon receipt of a complaint is usually the first step to help avoid costly litigation, preserve a positive workplace culture and ensure a safe work environment for employees going forward.

The EEOC guidance makes clear that an employer is liable for a hostile work environment due to harassment if it (1) unreasonably failed to prevent the harassment or (2) failed to take reasonable corrective action in response to harassment about which it knew or should have known.

Failing to Prevent Harassment

In determining whether an employer took reasonable steps to prevent harassment, the EEOC looks at numerous factors including:

• The adequacy of the employer’s anti-harassment policy, complaint procedures and training;
• The degree of authority that the alleged harasser exercised over the complaining employee;
• The adequacy of the employer’s training and reporting mechanisms; and
• The employer’s efforts to minimize obvious risks (for example, lacking diversity in the workforce, creating workspaces that are isolated and not sufficiently monitored, or failure to protect employees who are vulnerable, etc.).

Investigating a Complaint of Harassment

When an employer has notice of unlawful harassment by both employees or nonemployees, it must act “reasonably” to correct the harassment. This includes conducting a “prompt and adequate investigation.” According to the EEOC, an investigation is “prompt” if it is conducted “reasonably soon” after the employer receives the complaint of harassment. This is fact-specific, but, according to the EEOC, waiting two months or more to open an investigation is not prompt unless specific circumstances warranted such a delay. An investigation is “adequate” if it is sufficiently thorough to obtain a “reasonably fair estimate of the truth.” This means that, at minimum, the investigation must be conducted by a neutral party and must seek information about the conduct from all parties involved. The alleged harasser should not be a supervisor of the individual conducting the investigation and should not have direct or indirect control over the investigation. Where there are conflicting versions of events, as is typically the case, the investigator will have to make credibility determinations. For this reason, the person conducting the investigation should be well-trained in interviewing witnesses and evaluating credibility.

Employers should consider whether intermediate measures are needed during the pendency of the investigation, for example adjusting schedules to avoid contact between the parties, temporarily transferring the alleged harasser or placing the alleged harasser on paid leave and suspending any terminations or adverse job decisions. The complaining employee should not be subjected to any negative consequences both during and after the investigation.

When the investigation is concluded, the employer should inform the complainant and the alleged harasser of its determination and any corrective action that it will be taking, subject to any applicable privacy laws. Employers must retain records of harassment complaints and investigations. Upon a finding of harassment, an employer must take corrective action that is “reasonably calculated to prevent further harassment.”

Employers are thus encouraged to act swiftly in dealing with harassment complaints and can help shield themselves from liability if an investigation is properly implemented.

Best Practices for Employers

Be Proactive

Review your anti-harassment policy and distribution practices to ensure that all employees are aware of and can easily access the policy. You should send your anti-harassment policy to all employees annually and have each employee sign an acknowledgment that it has been received and reviewed. Make sure the policy includes a clear process for how complaints should be reported and how the company will investigate the complaint.

Training Is Key

In addition to anti-harassment training for all employees, make sure supervisory employees are aware of reporting requirements and receive specialized supervisor training.

Act Quickly

Delays in taking action can not only increase the risk that an employer will be held liable for harassment, but can cast doubt on the employer’s entire procedure for responding to harassment. Acting quickly also sends a strong message to employees that complaints are taken seriously.

Select the Right Investigator

Choosing the right person to investigate a complaint is crucial. Investigations can be completed in-house if the human resources department is experienced in conducting harassment investigations and no conflicts of interest exist. If the alleged harasser is a supervisory employee, members of the human resources team are involved in the conduct under investigation (either as witnesses, complaining employees, or as alleged harassers), or other circumstances warrant impartiality, engaging outside counsel to conduct the investigation is recommended. Also, if conducted by counsel for the purpose of providing legal assistance, the investigation will likely be protected by  attorney-client privilege.

Assess Any Litigation Risk

Consider whether a litigation hold is necessary during the investigation to preserve documents and evidence.

About Duane Morris

Duane Morris employment attorneys have significant experience in this area, helping clients review harassment policies and providing advice on how to respond to complaints of harassment.

For More Information

If you have any questions about this Alert, please contact Bronwyn L. Roberts, Charlotte Drew, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.