Warning: New EEOC Standards for Internal Investigations

Nyemaster Offers Training on New Standards

HR professionals, beware! The EEOC has heightened internal investigator standards and qualifications for all forms of harassment investigations. Make sure you receive the training required to satisfy the EEOC’s expectations.  

Buried in the EEOC’s new guidance on workplace harassment, issued in April 2024, are new expectations for internal investigations. This guidance has a direct impact on who is conducting your organization’s internal investigations, and how those investigations are being conducted.

What to Know

Here is what your organization needs to know about the new investigation expectations:

1. All investigations into harassment must be “sufficiently thorough” to “arrive at a reasonably fair estimate of the truth.”
   
   According to the Guidance, this means that the EEOC will be scrutinizing who is interviewed, how long the interview meetings lasted, and the quality of interviews with parties and witnesses. It also indicates that the EEOC will be taking a Monday-morning quarterback approach, and will examine whether, with the benefit of hindsight, your organization should have conducted the investigation a different way to arrive at a finding that is closer to “the truth.”
   
   

2. The investigation must be conducted by an “impartial party.”
   
   The EEOC will be considering whether an organization’s investigator has any reporting relationship with any party; if so, it may give rise to a “conflict” and require a different investigator. Similarly, if a party involved in the investigation has “any direct or indirect control” over the investigation, it will be deemed a conflict. This may create issues for your organization. If, for example, a CEO is accused of harassment, and the investigator, perhaps the Chief People Officer, reports up to the CEO, or the CEO has the “final say” in any disciplinary action that could be taken as a result of the investigation, that could create a “conflict” that the EEOC would later challenge. 

3. If there are “conflicting versions of relevant events,” the EEOC will expect to see the investigator “make credibility assessments to determine whether the harassment in fact occurred.”
   
   Employers must be prepared to consider conflicting stories and decide what the “truth” is using “credibility assessments.” Deciding which version of events is more credible can be challenging. An investigator must be prepared to explain why they found one person more credible than another, and rely on more than a “hunch.”

4. Investigators “should be well-trained in the skills required for interviewing witnesses and evaluating credibility.”
   
   Many HR professionals have capably handled internal investigations for their respective organizations for years. This Guidance is changing the landscape on this, and is now requiring that investigators possess a specific skill set for “interviewing witnesses” and “evaluating credibility.” While many of us have intuitive skills in these areas, this will no longer be sufficient. Investigators must be prepared to show that they are not just experienced, but that they are also “well-trained” to conduct these investigations.

What to Do

Here is what you need to do to ensure compliance with the new Guidance:

• Make sure that the individuals in your organization who conduct internal investigations receive proper training to satisfy the EEOC’s “well-trained” investigator requirement.
• Look for training programs that will allow you to keep the training materials.
• Make sure the training program issues a training certification to prove that you satisfy this qualification.
• Ensure training materials include and refer to the heightened standards and expectations outlined in the EEOC’s guidance. 

Nyemaster Offers Training

Beginning in November, Nyemaster will be offering investigator training workshops that will satisfy this criteria. The first session is scheduled for November 20 and will be held in Ankeny, Iowa. Click here to learn more and enroll in this training.