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EEOC guidance on workplace investigations June 29, 2007 Excerpted from New York Employment Law Letter and written by an attorney at the law firm of Epstein Becker & Green, P.C.
According to the Equal Employment Opportunity Commission (EEOC), the present national policy of non-discrimination in employment is firmly rooted in the law, and there is general agreement that equal opportunity in employment has increased dramatically in the United States. For example, the EEOC points to the fact that African Americans and other people of color now work in virtually every field, and opportunities are increasing at every level of employment. The EEOC acknowledges, however, that unlawful discrimination and harassment in the workplace continue to be a pervasive problem. The number of charges filed with the EEOC remains high, with more than 75,000 charges filed with the commission in fiscal year 2005. What does that mean for employers? Simply put, they must remain proactive in guarding against unlawful discrimination by ensuring that employment decisions aren't being made to exclude individuals in protected classes (such as race, sex, national origin, age, and disability) and by promptly and thoroughly addressing discrimination complaints when they arise. How employers conduct a workplace investigation is an important piece of the equation. Audio Conference: Initiating An Internal Investigation: Keep Employee Complaints From Landing In Court EEOC guidance More important, the guidance provides a list of specific steps the EEOC believes an employer should take to show that it took reasonable care to prevent and correct discrimination and harassment. One of those steps is conducting a prompt and thorough workplace investigation, discussed in detail below. Although the guidance doesn't have the force of law and isn't legally binding on the courts or employers, it's significant because the courts have relied and will continue to rely on it when deciding discrimination and harassment cases. Briefly stated, the guidance explains and expands on the U.S. Supreme Court's landmark decisions in Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton. The decisions established standards for employer liability under Title VII of the Civil Rights Act of 1964 in cases involving supervisors' sexual harassment of subordinates. The guidance extends the liability standards to all forms of unlawful discrimination and harassment, including discrimination and harassment based on race, color, sex (whether or not of a sexual nature), religion, national origin, protected activity, age, or disability. Workplace Investigations: The HR Manager's Step-by-Step Guide Workplace investigation According to the EEOC, employers need to set up a mechanism for a "prompt, thorough and impartial investigation" into alleged discrimination and harassment. Below are important considerations for employers. Confidentiality. Protect the confidentiality of discrimination and harassment allegations. The EEOC recognizes that during an investigation, employers can't be expected to keep all information confidential. They should, however, make clear to the employees they interviewed that the statements made and information gathered will remain confidential "to the extent possible." Employers can't guarantee complete confidentiality since they can't conduct an effective investigation without revealing certain information to the alleged harasser and potential witnesses. Information should be shared only on a need-to-know basis, and all records relating to discrimination and harassment complaints should be kept confidential on the same basis as well. Promptness. According to the EEOC, an employer's response to discrimination and harassment allegations must be done at once without delay: "As soon as management learns about alleged harassment, it should determine whether a detailed fact-finding investigation is necessary." If such a determination is made, an investigation should be "launched immediately" and completed in a timely fashion. The amount of time needed to complete the investigation will depend on the "particular circumstances" of each case and the number of individuals involved. Providing interim protection. At the outset of the investigation, it may be necessary to undertake intermediate measures, such as schedule changes, transfers, or leaves of absence, to separate the complaining employee and the alleged harasser to ensure that further harassment doesn't occur. To avoid retaliation claims, the complaining employee shouldn't be involuntarily transferred or burdened. Impartiality. The EEOC emphasizes the importance of an investigation being conducted impartially: "The employer should ensure that the individual who conducts [the] investigation will objectively gather and consider the relevant facts." Toward that end, the investigator shouldn't offer any opinion when interviewing the parties and witnesses. In addition, the alleged harasser shouldn't have supervisory authority over the individual conducting the investigation or have direct or indirect control over the investigation. Training. The individual who conducts the investigation should be "well-trained in the skills that are required for interviewing witnesses and evaluating credibility." Thoroughness. The complaining employee, the alleged harasser, and all third-party witnesses should be interviewed by an employer's r investigator when detailed fact-finding is deemed necessary. Questions should be relevant, open-ended, and designed to elicit facts, without leading the individual being questioned. Credibility determinations. Employers must consider the credibility of the individuals being questioned during an investigation, particularly when there are conflicting versions of relevant events. Noting the importance of credibility determinations, the EEOC emphasizes that "credibility assessments can be critical in determining whether the alleged harassment in fact occurred." Factors to be considered in making such determinations include inherent plausibility, demeanor, motive to falsify, corroboration, and past record. Reaching a determination. A determination of discrimination or harassment should be made -- and corrective action taken, if warranted -- once all evidence has been gathered, interviews have been completed, and credibility issues have been resolved. Either the investigator or the member of management reviewing the investigator's report should make the determination, and both the complaining employee and the alleged harasser should be promptly notified of the determination. Internal Investigations: A Practical Training Course for HR Recommendations
Audio Conference: CSI HR: When Your Employee is Accused or Gets Arrested Copyright 2007 M. Lee Smith Publishers LLC. This article is an excerpt from NEW YORK EMPLOYMENT LAW LETTER. NEW YORK EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in New York employment law. Questions about individual problems should be addressed to the employment law attorney of your choice . ___________________________________________________________________
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