As discrimination criteria widen, employee relations teams need to be ready
In April, the Equal Employment Opportunity Commission (EEOC) issued enforcement guidance on workplace harassment; HR Acuity’s Deb Muller breaks down what employee relations teams should know to prepare their organizations.
The new EEOC guidance on harassment in the workplace makes it clear that while we can’t prevent every issue, organizations that are vigilant about employee relations (ER) processes will be more successful at reducing liability and damages.
Here are four areas ER teams must tighten up in order to get prepared for widening discrimination criteria:
Investigations
The guidance states that an employer’s duty to act on harassment begins as soon as they are aware of an allegation: “Once an employer has notice of potentially harassing conduct, it is responsible for taking reasonable corrective action to prevent the conduct from continuing. This includes conducting a prompt and adequate investigation and taking appropriate action based on the findings of that investigation.”
That means ER teams must create consistent, reportable investigation processes that provide a prompt response. To prove adequacy, it’s critical for ER teams to prepare to share investigation results, such as aggregate outcomes and substantiation rates.
In addition, it’s recommended that ER teams adopt a formal process and frequently train investigators. According to our 2023 benchmark report, 42% of organizations don’t use a required, structured investigation process, and 46% of organizations only train investigators as needed — risky moves in light of tightening guidance and ever-changing nuances in the workforce.
Finally, ER must retain records of all harassment complaints and investigations. According to EEOC’s guidance, “Employers are required to keep records for one year from the date of the making of the record or the personnel action involved, whichever occurs later.”
Beyond compliance, retaining records is just plain smart. They help identify patterns of harassment, can be relevant to future credibility assessments and are useful for improving preventive measures, including training.
Tracking case data
The EEOC makes it clear if the harassment is caused by a proxy or alter ego of the company, there is no defense, but, in some cases, liability can be limited, even if the harasser is a supervisor, if an employer has taken proactive steps to prove they’ve acted in good faith to prevent or correct harassment. Using the Faragher-Ellerth defense, an employer can improve their chance for an affirmative defense to liability if they can prove 1) they’ve taken reasonable care to prevent or correct harassment 2) employees have failed to take advantage of any preventive or corrective opportunities provided by the employer or 3) they’ve taken reasonable corrective action in response to past harassment by a supervisor.
Closely track cases and make historical data easily accessible and reportable with a proactive approach that addresses future needs to build a defense. This includes empowering your team to identify high-risk cases that involve a proxy or supervisor and track prior actions taken to prevent or correct harassment either by individuals or when identified as a pattern.
Reporting
Employers can also limit damages when they can prove they consistently remove obstacles that could delay or prevent an employee from filing a complaint. The new guidance provides examples of reasonable explanations for an employee delaying a complaint or failing to utilize an employer’s complaint process. Those examples include 1) the employer creates obstacles to filing a complaint, 2) the employer offers an ineffective complaint mechanism and 3) an employee feels there is a risk of retaliation.
To address the first two examples, ER teams must offer an easily accessible, confidential channel for reporting complaints to the organization. A prevalent example is the use of an anonymous reporting tool that employees can access from anywhere. To address the third example, ER teams should consider establishing protocols within their processes that review anti-retaliation policies at the start of every interview.
Aftercare
The EEOC guidance makes it clear that employers must prove they’ve taken appropriate corrective action and that action must be “reasonably calculated to prevent further harassment under the particular circumstances at that time.”
What does the EEOC consider reasonable? The commission lists five requirements: 1) proportionality of the corrective action to the seriousness of the offense, 2) authority granted to the harasser, 3) whether harassment stops, 4) effect on the complainant and 5) extent of case substantiation.
In order to satisfy all five requirements, ER teams must have a robust reporting process and a comprehensive aftercare program. Proving that harassment has actually stopped and that the complainant isn’t facing retaliation or some other burden due to corrective action can happen only if there is frequent, meaningful follow-up after a case is closed.
ER teams must clearly communicate the aftercare process and relevant resources so that employees know what to expect both during and after an investigation. What’s more, ER must ensure the process is consistently followed. Aftercare presents a huge opportunity for ER teams to improve; our 2023 report showed that only 6% of organizations had a well-defined process to support involved parties and monitor situations after an investigation proactively.
