How to address, investigate workplace harassment

Listen to this article

By Shayda Le

The Equal Employment Opportunity Commission published final guidance on harassment in the workplace earlier this year. While this guidance is not law, it provides employers with an official agency resource on legal standards and employer liability in relation to federal harassment laws. While the existing legal framework for analyzing harassment claims has not changed, there are some new areas of focus, and updated recommendations, which employers can incorporate into how they evaluate allegations of harassment in the workplace, and how they investigate such concerns.

Areas of emphasis

• Remote work: In recognition of the proportion of EEOC charges that include allegations of harassment, and in recognition of the fact that the number of charges has increased despite the prevalence of remote work or hybrid work arrangements, the new guidance includes focus on how harassment can occur in a remote work environment. It specifically recognizes discussions during videoconferences, comments made within a chat feature, racist images that might be visible in someone’s background, and conduct occurring away from work like posts on a personal social media page.
• Intraclass harassment: This is where harassment is based on a protected characteristic, but the harasser is a member of the same protected class. The new guidance emphasizes that such conduct still counts as harassment despite the harasser’s own identifying characteristics and provides several examples of what this can look like.
• Pregnancy and reproductive care: The EEOC makes clear that harassment based on sex is not limited to consideration of gender. It also encompasses pregnancy, childbirth or related medical conditions, and therefore, employees are afforded protection when it comes to decisions related to pregnancy, lactation, contraceptive choices or the decision to have or not have an abortion.
• LGBTQ+ rights: This area of emphasis reflects new cases that have interpreted and expanded rights. In Bostock v. Clayton County (2020), the U.S. Supreme Court held that discrimination based on sex is not limited to consideration of gender; it affirmatively includes sexual orientation, gender identity and transgender status. Examples provided in the new guidance include denial of access to a bathroom consistent with gender identity, intentional and repeated misgendering of an employee, harassing behavior related to the fact that an employee does not present in a manner that is stereotypically associated with their gender, and outing a person’s sexual orientation or gender identity without their permission.

Workplace investigation takeaways

When allegations of harassment arise in the workplace, employers are obligated to evaluate the concerns and determine if corrective action is necessary. The EEOC guidance provides updated takeaways for employers in the conduct of such reviews or investigations.

• Protected characteristics: The protected characteristics covered under Title VII are confirmed and clarified, which provides a better roadmap for navigating the nuances of a workplace complaint and investigation. If an employee complains about gendered behavior and the treatment at issue manifested in more nuanced and less obvious ways, this guidance provides a helpful basis with which to analyze the contours of that claim. If an employee complains about intersectional harassment, where there are combined protected characteristics at issue, this guidance helps us to consider each characteristic plus the overlapping characteristic.
• Causation: The guidance provides additional focus on understanding causation and how to determine if the conduct at issue was caused by an employee’s protected class. This directly relates to an employer’s analysis of whether the complaint the employee has raised is just frustrating conduct, versus harassment connected to a protected class. Some of the factors suggested for consideration are stereotypes, context, timing, and comparative evidence.
• Internal investigators: Typically, externally hired investigators are charged to reach factual findings and conduct an analysis of the workplace complaint but are then separated from the internal decisions that are made about appropriate next steps following the conclusion. However, internal investigators are more likely to be involved in making recommendations about next steps. This guidance can serve as a helpful tool in evaluating existing employer policies and aiding internal investigators to assist with appropriate remediation.
• Investigative process: It has always been the case that workplace investigations are supposed to be prompt and adequate, but the new guidance elaborates these points. A prompt investigation ought to be conducted reasonably soon after the employer has notice of possible harassment, although the specific timeframe is fact sensitive, depending on the nature and severity of the alleged conduct, and on the reason for delay, if there is one. The adequacy of the investigation refers to the thoroughness and impartiality. Adequate means that the process was sufficiently thorough to arrive at a reasonably fair estimation of the truth, which includes seeking information from the parties involved, ensuring that the subject of the investigation does not have supervisory authority over the investigator, selecting an investigator who is well trained in harassment law and has the skills required for interviewing witnesses and evaluating credibility, following an investigative plan, and conducting a robust analysis to explain how and why the outcome was reached.
• Decision to investigate: The guidance also emphasizes that doing an investigation is important. An employer’s duty to exercise reasonable care in the face of an allegation of harassment includes figuring out what is truly going on so that the steps taken are adequate for the situation. An employer may be able to hold up an affirmative defense to a claim of harassment by demonstrating that it fulfilled its obligations and took appropriate measures to address and respond to harassing conduct. Conducting an investigation is tied to fulfilling the employer’s obligations under employment laws and is tied to the employer’s ability to hold up that affirmative defense.

Shayda Le is a partner advising employers on employment and litigation issues at Barran Liebman’s office in Portland, Oregon.