Investigations as Prevention: How Prompt, Thorough, and Impartial Investigations Can Correct and Prevent Unlawful Workplace Harassment

Despite a longstanding prohibition on workplace harassment, the number of harassment charges the EEOC receives remains relatively high, comprising approximately one third of all EEOC charges.  [FN 1] 

In light of this phenomenon, the EEOC formed a “Select Task Force” (Task Force) in January 2015 to explore and critique the effectiveness of current employer harassment prevention methods.  Guided by the Task Force’s June 2016 Report [FN 2], the EEOC proposed sub-regulatory guidance for employers in preventing unlawful workplace harassment (Proposed Guidance).  [FN 3]  In December 2017, the EEOC published Promising Practices for Preventing Harassment (Promising Practices), which reflect many of the Task Force Report and Proposed Guidance’s essential components.  [FN 4]  This article briefly summarizes some of the the Task Force’s findings and the Promising Practices as they relate to workplace investigations.  [FN 5]  

The Task Force’s Findings

The Task Force emphasized some alarming facts about workplace harassment:

First, workplace harassment is costly.  Whether based on sex, race, religion, disability, or some other protected status, employers pay a high price for failing to adequately prevent harassment.  One study “conservatively” estimated that workplace harassment cost government employers over $370 million over two years in lost individual and group productivity, high employee turnover, and the reputational damage harassment causes.  [FN 6]

Second, workplace harassment is commonplace.  The Task Force found that 25% to 85% of women and 14% to 19% of men have experienced sexual harassment in the workplace.  Although studies on other forms of harassment are limited, available studies suggest that harassment based on race, disability, age, or other protected status is prevalent, and that individuals with multiple protected statuses may be at even greater risk.  [FN 7]

Finally, and unsurprisingly based on the continued prevalence of workplace harassment charges, the Task Force found that employers’ harassment prevention policies are largely ineffective.  One reason for this is that many employees fail to report harassment based on reasonable fears of retaliation.  These Task Force findings should alarm employers, as an ineffective policy may expose employers to greater risk of vicarious liability for unlawful harassment.  If an employer’s policy is – or is reasonably perceived to be – ineffective, an employee may be reasonable in deciding not to use that policy.  Where this is so, an employer could not use that employee’s failure to utilize its policies to establish a Faragher-Ellerth defense to vicarious liability.

Promising Practices for Preventing Harassment

In light of the Task Force Report, the Promising Practices emphasize the importance of creating policies that are both effective and perceived to be effective in preventing and correcting workplace harassment.  It sets forth five “core principles” that might better prevent and correct unlawful workplace harassment:

  • Committed and engaged leadership,
  • Consistent and demonstrated accountability,
  • Strong and comprehensive harassment policies,
  • Trusted and accessible complaint processes, and
  • Regular, interactive training relevant to that organization.

The Promising Practices set forth several steps an employer may take to further the above principles, including the following:

  • Create a “fully resourced” harassment complaint system, including devoting “sufficient” staff and finances to implementing harassment policies;
  • Bestow appropriate authority to harassment policy creators, implementers; and managers;
  • Impose prompt, consistent and proportionate discipline where harassment likely occurred;
  • Identify and minimize harassment risk factors in a the employer’s workplace;
  • Conduct prompt, thorough,and neutral investigations;
  • Protect the privacy of complainants, respondents, and witnesses to the fullest extent permitted by law [FN 8];
  • Ensure that individuals handling complaints have the training, independence, and resources required to respond to complaints at all stages, including reporting, investigation, and the imposition of discipline, if warranted;
  • Document all complaints appropriately from intake through resolution; and
  • Communicate harassment and retaliation policies in a clear and accessible manner.

The Role of Investigations

Investigations play a key role in furthering many of the above objectives identified in the Promising Practices.  A thorough and timely investigation conducted by a skilled, neutral investigator provides the employer with the findings it needs to appropriately resolve each complaint.  And, it sends a message that leadership actually takes harassment seriously.  This in turn can deter future harassment, increase employees’ faith in the reporting process, and help protect an employer from vicarious liability by making an employee’s failure to report less reasonable.  On the other hand, a substandard investigation can hinder an employer from achieving these objectives by providing a weak decision-making tool, sending a message that leadership does not take harassment seriously, and making an employee’s failure to report harassment more reasonable.  

In sum, employers should invest in workplace investigations as a tool, not only to protect employees, but to protect themselves and to make the workplace a more productive one.

 

Footnotes

  1. For example, the number of EEOC harassment charges between 2010 and 2017 comprised approximately one third of all EEOC charges.  In these years, harassment charges ranged from 26,756 to 28,216, a difference of only 1,460. EEOC Enforcement and Litigaiton Statistics FY 2010 to FY 2017, available at https://www.eeoc.gov/eeoc/statistics/enforcement/all_harassment.cfm (harassment charges); https://www.eeoc.gov/eeoc/statistics/enforcement/all.cfm (all charges).
  2. Select Task Force on the Study of Harassment in the Workplace Report of the Co-Chairs (June 2016), available at https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm#_ftnref15.
  3. Proposed Enforcement Guidance on Unlawful Harassment (January 2017), available at https://www.regulations.gov/document?D=EEOC-2016-0009-0001.  The public comment period opened January 10, 2017 and closed March 21, 2017.  This document is not official EEOC policy.  However, the EEOC published Promising Practices for Preventing Harassment, as noted in footnote 4 below.  
  4. EEOC’s Promising Practices for Preventing Harassment, available at https://www.eeoc.gov/eeoc/publications/promising-practices.cfm.
  5. I summarize the Task Force Report and Proposed Guidance in more detail in the following article, available to AWI members:  The EEOC’s Proposed Enforcement Guidance on Unlawful Harassment and Task Force Report Highlight the Importance of Prompt, Thorough, and Impartial Investigations, AWI Journal December 8/4, 2017.  At the time of that article’s submission, the EEOC’s Promising Practices on Harassment had not yet been published. 
  6. The EEOC’s Select Task Force on the Study of Sexual Harassment in the Workplace cited three studies conducted by the Merit Systems Protection Board (MSPB) of federal employees in 1980, 1987 and 1994: Sexual Harassment in the Federal Workplace: Trends, Progress, Continuing Challenges (1994) available at http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=253661&version=253948; U.S. Merit Systems Protection Board, Sexual Harassment in the Federal Government Update (1988) available at http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=252435&version=252720&application=ACROBAT; and U.S. Merit Systems Protection Board, Sexual Harassment in the Federal Workplace: Is it a Problem? (1981) available at http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=240744&version=241014&application=ACROBAT.
  7. Id. at 2.
  8. The Promising Practices acknowledge tension between the EEOC’s own position encouraging confidentiality in investigations and the NLRB’s position in Banner Health System d/b/a Banner Estrella Medical Center, 362 NLRB No. 137 (June 26, 2015).  
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