Preventing Harassment in 2025
by Raabia Cheema and David Sotolongo
It’s a new year and a good time to review and update employment policies and practices, including those related to workplace conduct. In 2024 the Equal Employment Opportunity Commission (“EEOC”) issued Enforcement Guidance on Harassment in the Workplace (“Guidance”), setting forth valuable perspectives on the EEOC’s position on employer liability under federal antidiscrimination laws. We encourage HR leaders to be familiar with key concepts from the Guidance and utilize its helpful and practical roadmap for corporate compliance.
Introduction. The Guidance provides “best practices for preventing and remedying harassment”, and a helpful discussion of suggested anti-harassment policies, complaint procedures, and other anti-harassment tools. Here is what the Guidance suggests for employers:
Develop Compliant Policies. An effective anti-harassment policy should generally:
Define what conduct is prohibited.
Be widely disseminated.
Be comprehensible to workers, including those who the employer has reason to believe might have barriers to comprehension.
Require that supervisors report harassment as soon as they become aware.
Offer multiple avenues for reporting harassment, allowing an employee to contact someone other than the alleged harasser.
Identify accessible points of contact to whom reports of harassment should be made and include contact information.
Explain the complaint process, including the process’s anti-retaliation and confidentiality protections.
Develop Compliant Complaint Processes. An effective complaint process should provide for:
Prompt and effective investigations and corrective action.
Adequate confidentiality protections.
Adequate anti-retaliation protections.
Deliver Employee and Manager Training. For training to be effective, its content should:
Explain the employer’s anti-harassment policy and complaint process, including any alternative dispute resolution process, and confidentiality and anti-retaliation protections.
Describe and provide examples of prohibited conduct.
Inform employees of their rights if they experience, observe, become aware of, or report conduct that they believe may be prohibited.
Inform supervisors and managers about how to prevent, identify, stop, report, and correct harassment, including actions that can minimize the risk of harassment; as well as provide clear instructions for addressing and reporting harassment that they observe, is reported to them, or of which they become aware.
Be tailored to the workplace and workforce.
Be provided on a regular basis to all employees.
Be provided in a clear, easy-to-understand style and format.
Conduct Prompt and Effective Investigations. For investigations to be adequate, they must be initiated promptly and competently, and following the investigation the employer must establish that it took reasonable corrective action to prevent further harassment.
What is considered “prompt” will depend on the circumstances:
The Guidance provides two examples of behavior that are not prompt: an employer that waits two months to open an investigation, for example, “very likely has not acted promptly”; in case of allegations of improper physical touching, an employer that does nothing for two weeks likely has not acted promptly.
While an investigation is ongoing, intermediate steps may be taken to address the status of the parties:
For example, making scheduling changes to avoid contact between the parties, temporarily transferring the alleged harasser, or placing the alleged harasser on non-disciplinary leave with pay pending the conclusion of the investigation.
“Every reasonable effort” should be taken to minimize the burden or negative consequences to an employee who complains of harassment, both during and after the investigation.
Action that leaves the complainant worse off may constitute unlawful retaliation.
An investigation is adequate if it is sufficiently thorough to “arrive at a reasonably fair estimate of truth.”
The review should be conducted by an impartial third party who is well-trained in the skills required for interviewing witnesses and evaluating credibility.
After completing an investigation, employers should take corrective action that is “reasonably calculated to prevent further harassment.” The reasonableness of the corrective action will depend on the particular facts and circumstances of the case.
Corrective action should be proportionate to the seriousness of the offense. While comparatively minor harassment might be corrected with warning and counseling, severe or persistent harassment should generally be corrected with suspension, termination, or similarly proportionate action.
If the results of an investigation are that harassment did not occur, or if the findings are inconclusive, an employer may still consider preventative measures such as counseling, training, monitoring, or issuing general workforce reminders about the anti-harassment policy.
Employer Take-Aways:
Use this helpful roadmap to ensure that your organization’s anti-harassment policies, complaint processes, and training are updated and contain the elements outlined in the Guidance. Ensure adherence in practice: are employee norms and culture aligned with your policies? How recently was your management team trained? Do employees understand the policies and complaint process? Do managers?
Have a documented process in place to promptly address alleged harassing behavior. Outline the timeframe for response, investigation, and corrective action. Review the current policy in place — do you follow it? If not, why? What lessons learned should be integrated into written policies? What updates should be made?
Ensure that investigators are free of any conflicts of interest, are familiar with the relevant anti-discrimination laws, and have experience conducting harassment investigations. Train investigators and train managers about their roles in the investigative and corrective process
Take measures to eliminate the possibility of retaliation.
Contact us if you have questions.
