How-to guide: How to investigate workplace harassment complaints (USA)

Introduction

This guide will assist in-house counsel, private practice lawyers, and human resource departments with investigating workplace harassment complaints.

This guide covers:

Overview of workplace harassment law
Conducting an investigation into a workplace harassment complaint
Follow-up to investigation

This guide can be read in conjunction with How-to guide: Overview of workplace harassment.

Due to the evolving nature of workplace harassment laws in the United States, it is imperative for organizations to review the most recent legal developments and regularly check for updates, especially at the state level.

Section 1 – Overview of workplace harassment law

Workplace harassment, when based on an employee’s membership of a protected class, is a form of employment discrimination. It differs from the conduct usually regarded as discrimination (eg, a refusal to hire or promote) in that it may be perpetrated by employees acting on an individual basis rather than on behalf of the organization.

1.1 Legal basis

Workplace harassment is a type of violation of Title VII of the Civil Rights Act of 1964, which stipulates that no employee of, or person seeking employment by, a company of more than 15 employees can be discriminated against based on their religion, sex, race, or age. Other federal and state laws have been put into place to protect employees against discrimination or harassment based on national origin, disability, gender identity, marital status, and more.

The Equal Employment Opportunity Commission (EEOC), is a division of the US Department of Justice and the federal agency that enforces workplace harassment laws. The EEOC makes employers liable for harassment attributable to certain conduct, including harassment:

perpetrated by a superior figure;
resulting in an employee being fired, demoted, or losing benefits;
creating a hostile work environment; and
perpetrated by an employee when the employer is aware and fails to immediately correct the conduct.

The EEOC is also responsible for mediating and settling discrimination complaints.

An employer must have a certain number of employees in order to be covered by the laws enforced by the EEOC. The number of employees required will vary depending on the type of employer and the kind of discrimination alleged. For example, the coverage may be different depending on whether the employer is a private company, a state or local government agency, a federal agency, an employment agency, or a labor union. Guidance on coverage requirements is available from the EEOC at EEC webpage: Coverage.

1.1.1 Harassment defined

Harassment

According to the EEOC, when a person is put down, shown hostility, or is the recipient of unwanted conduct from a fellow employee or supervisor, this is defined as workplace harassment, if the conduct is based on the victim’s national origin, age, religion, disability, sexual orientation, gender, or other characteristic that is protected by state and federal laws.

Harassment may be present in two types of conduct: quid pro quo and hostile environment.

Quid pro quo harassment – this occurs when a person in a position of authority over the employee being harassed (eg, a manager or supervisor) requires the employee to tolerate inappropriate behavior as a condition of obtaining or keeping a job, or a job benefit, such as raises and promotions. Unlike hostile environment harassment, which must be persistent in nature, a quid pro quo claim may be established through a single occurrence. Quid pro quo harassment is usually a form of sexual harassment, although it can also result from unwelcome conduct of a religious nature.
Hostile environment harassment – this refers to a pattern of conduct that is unwelcome, and pervasive or unchecked, or is severe enough to establish an offensive or abusive work environment. In a quid pro quo harassment a single act is sufficient; however, a hostile work environment must be frequent, ongoing, or severe in nature. In determining whether a hostile work environment exists, and the character of the harassment, a court considers whether:
the harasser was a supervisor or co-worker;
the conduct was frequent;
the conduct was verbal, physical, or other;
the conduct was blatantly offensive, or clearly hostile in nature;
the conduct was directed at a single victim, or multiple persons; and
the harasser was a single individual, or if others joined in the harassment.

See How-to guide: Overview of workplace harassment for further information.

Sexual harassment

Sexual harassment is defined by the EEOC to include unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature (see EEOC webpage: Sexual Harassment). Behavior that interferes with a person’s job, creates an offensive work environment, or intimidates the person can constitute sexual harassment. This may range from making or distributing offensive jokes, to inappropriate touching, or pressuring someone to engage in a personal or sexual relationship.

1.1.2 Protected classes

As stated above employees are protected at federal level from harassment based on national origin, age, religion, disability, sexual orientation, or gender.

State laws have been put in place to protect employees from harassment based on other characteristics, such as:

familial status (Minn Stat 363A.08);
status regarding public assistance (NDCC 14-02.4-01); and
use of a service dog (NY Civ Rts Law 47-A).

1.2 Duty to investigate

Two important Supreme Court decisions have helped to define the employer’s duty to investigate harassment complaints as well as establishing that an employer may mitigate liability by taking appropriate action once a complaint has been made by an employee. First, in Burlington Industries Inc v Ellerth, 524 US 742 (1998) the court stated that the ‘[e]mployer is negligent with respect to sexual harassment if it knew or should have known about the conduct and failed to stop it.’ Then, in Faragher v City of Boca Raton, 524 US 775 (1998) the court added that an employer may eliminate or avoid liability for harassment by promptly investigating and taking appropriate remedial action to end the harassment.

An employer, however, may lose the affirmative defenses established in those cases if it fails to investigate promptly or take corrective actions with respect to the harassment. See for example, Ogden v Wax Works, Inc, 214 F3d 999 (8th Cir 2000).

It is important to remember that if an issue of workplace harassment has not been resolved after the employee reports it through the appropriate chain of command, the employee can file a formal complaint with the EEOC and may also hire an attorney to assist with complaints and potential lawsuits.

See Checklist: Responding to an Equal Employment Opportunity Commission (EEOC) charge for further information.

1.3 Internal policy

It is best practice for employers to provide new employees with an employee handbook, which provides company information, instructions, and policies, including policies on workplace discrimination and harassment. The employer should have a written internal complaint procedure included in the anti-discrimination and harassment policy. The complaint procedure should be designed in a manner that encourages victims of harassment to come forward. Complaints made pursuant to the complaint procedure must be investigated. It is also best practice to investigate suspected harassment (eg, offensive pictures displayed in an employee’s workplace) even if there is no complaint. An employee may be reluctant to come forward if they believe they are the only one who finds the conduct troublesome.

In terms of internal policy, statements made by officers, vice-presidents, regional directors, and regional and local managers can be held to represent formal company policy. For example, statements made by a corporate executive that were blatantly anti-female were subsequently echoed by others in management positions and were thus deemed to be ‘expressions of the company policy’ (Wilfong v Rent-A-Center, Inc, No. 00-CV-0680-DRH, 2001 BL 1529, 87 FEP Cases 1096, 2001 Us Dist Lexis 22718, 2001 WL 1795093 (S.D. Ill. Dec. 27, 2001)).

In April 2024, the EEOC published the Enforcement Guidance on Harassment in the Workplace; a document that provides insights on what is considered harassment and how to avoid it in the workplace. While not law, employers should take advantage of the Guidance in the construction and use of their own harassment policies. Note that on May 15, 2025, the US District Court for the Northern District of Texas declared unlawful and vacated portions of this document relating to sexual orientation and gender identity. Texas, et al. v. EEOC, 2:24-CV-173 (N.D. Tex. May 15, 2025). The court’s vacatur of the unlawful portions applies nationwide, not just to the parties in the case.

For further information see How-to guide: How to draft the key provisions of an employee handbook and Checklist: Developing an Equal Employment Opportunity Commission (EEOC) compliant policy.

Section 2 – Conducting an investigation into a workplace harassment complaint

When investigating a complaint of workplace harassment, employers will need to decide between an external or internal investigation. An external investigation of harassment involves bringing in an investigator or team of investigators from outside the organization to investigate the complaint. An internal investigation is when the investigation is handled by personnel within the organization, usually from the human resources department or from in-house legal staff. An internal investigation is usually appropriate when the harassment complained of consists of relatively minor incidents and is perpetrated by one employee against only one or two others.

2.1 External investigation

An internal investigation may turn up more misconduct than was initially suspected, and the investigation may be handed over to an external investigator. Alternatively, an external investigator may be used from the outset due to the nature or severity of the allegations.

2.1.1 When to use external investigators

The most common reason for hiring an external investigator is that the allegations are serious and may have significant consequences if substantiated. The more serious an allegation (especially one that may amount to criminal conduct, such as damage to property, or assault), the more vigorously lawyers, arbitrators, courts, and tribunals will scrutinize the allegation as well as the investigation itself. If the investigation was flawed, employers can be exposed to legal liability. Therefore, in cases involving serious allegations, it is prudent to hire a trained and experienced investigator to conduct a fair and thorough investigation capable of withstanding intense scrutiny. Serious allegations include those that may lead to criminal prosecution, allegations made to a governmental agency, when the issues are complex, or if there may be multiple victims within the organization.

In addition, hiring outside investigators is prudent if the employer itself lacks the training and experience necessary to conduct a thorough investigation.

Some of the skills required in a harassment investigation include:

investigative techniques (eg, interviewing witnesses and gathering relevant documents);
evaluating evidence and reaching a conclusion supported by the evidence;
assessing credibility;
weighing corroborative, circumstantial and similar fact evidence;
maintaining impartiality and objectivity throughout the process; and
meticulous documentation and preparation of a comprehensive investigation report.

The investigator must also be able to assess when forensic expertise is required, and know how to deal with unexpected hurdles such as uncooperative witnesses, possible retaliation against a party, privacy issues, and third parties seeking to interfere with or control the investigation.

An additional reason for using an external investigator may be that the employer simply lacks the time or resources. Time is of the essence in harassment claims, and investigations must be prompt and thorough in order for the employer to avail themselves of the affirmative defenses described at section 1.2 above. Further, delays in commencing an investigation may lead to other issues such as witnesses that can no longer be reached, memories that have faded, or documents that have been lost or destroyed. An external investigator should therefore be retained whenever an employer does not have the internal resources to conduct a speedy, yet comprehensive, investigation.

Some other factors to consider when making a decision about whether to use outside investigators include situations where the media may become involved in the case, if it is prudent to have an attorney conduct the investigation in order to make the investigation privileged, or if litigation appears to be likely when the allegations become known by the employer.

2.1.2 Who conducts an external investigation?

Selecting a qualified professional is critical to ensuring the integrity and legal defensibility of an external investigation. Organizations tend to prefer licensed attorneys and private investigators who specialize in corporate investigations for complex or highly sensitive workplace investigations. Attorneys and private investigators have been trained in evidence gathering, the legal principles involved in the investigation, and in maintaining confidentiality.

Some independent human resources consultants also conduct workplace investigations, and they often do so at a lower cost. However, before hiring such a consultant, employers should scrutinize carefully the consultant’s experience and reputation in the legal and business community. Employers should also ensure that a consultant has received specific training in conducting investigations. In many states, HR consultants may not be able to assert attorney-client privilege or to qualify as expert witnesses if called at trial. Regardless of the type of professional chosen, the focus should remain on their proven ability to conduct an impartial, thorough, and compliant investigation.

2.2 Internal investigation

An internal investigation should include the following steps:

an interview with the complainant;
an interview with the alleged harasser;
an interview with others who may have witnessed or otherwise have knowledge of the alleged conduct;
identification of additional information (eg, emails, etc.) as appropriate; and
concluding the investigation.

2.2.1 When to conduct an internal investigation

When an individual reports inappropriate conduct to a supervisor or human resource representative, the employer is on notice that an investigation needs to be carried out. Any internal complaint should be met with prompt action, whether it is a complaint from a single employee or multiple allegations of potential misconduct. As noted above at section 1.2, the employer may be entitled to assert affirmative defenses in litigation arising out of the violations, but only if it acts promptly to investigate and remediate any potential misconduct.

2.2.2 Who conducts an internal investigation?

The organization’s internal policy usually includes a procedure that directs all complaints received by supervisors, human resources, and others to a designated contact person or department who is neutral with respect to the investigation (eg, human resources or the legal department). That person or department is then responsible for conducting the investigation and addressing any outcomes required by the findings of the investigation.

2.3 Reports of harassment

Employers may receive reports of harassment either through a formal complaints process, or via other, informal means.

2.3.1 Formal reports

All employees should report any incidents of potential harassment to the employer according to the procedure outlined in the organization’s policy or procedure. Generally, the report is directed to human resources, the legal department, or other designated person. Ideally a company policy should not require that complaints be made in writing, and it should clearly state that no retaliation or negative consequences will result from any complaint made in good faith by an employee.

2.3.2 Informal reports

A company may be liable if it knew or should have known about the harassment, whether the company learned about the harassment through a formal complaint or obtained the information informally. For example, if a manager observes harassing behavior and does not act, the inaction will create legal liability because the company will have constructive knowledge of the violation. See Allen v Tyson Foods, Inc, 121 F 3d 642 (11th Cir 1997). The liability is established just as if the company failed to act on a formal harassment complaint. It is therefore important that managers and supervisors understand what to do if they witness or hear about conduct that may constitute harassment.

2.4 Interviewing witnesses

It will likely be necessary to interview witnesses as part of an internal or external investigation.

2.4.1 Prompt interview

Any persons with knowledge of the facts including those identified by the complainant and the alleged harasser should be promptly interviewed. If a witness does not wish to participate in the investigation, state law may permit the employer to compel the witness to cooperate. In addition, in some cases it may be necessary to re-interview the complainant after talking to witnesses and particularly after talking to the alleged harasser. In serious cases, the investigator may wish to obtain signed written statements from any significant witnesses. In addition, the alleged harasser should be provided with an opportunity to respond to adverse statements made by witnesses.

2.4.2 Interviewing complainant

Before interviewing the complainant, the interviewer should prepare a list of questions designed to establish the facts and circumstances surrounding each alleged incident of harassment. These questions should be as open ended as possible, and not suggest a preferred answer. Questions might include the following:

Do you know why we are talking to you?
How well do you know [the complainant]? Do you remember when and where this incident happened?
Did you hear what either party said?
Did you see what took place? Can you describe it, using your own words?
Was anyone else there?
How has this incident affected you?
Do you know of any documents or reports containing information about the incident?
Do you know of any other person who has been similarly harassed?
Have you talked to anyone else about this incident?
Has anyone made any threats or promises to you about talking about this incident? Has anyone done anything to you?

Generally, at the end of the interview, the complainant should be asked to sign the interviewer’s notes or transcript, after reviewing them. If possible, the interviewer should ask that the complainant put their information in writing. This will ensure that the correct allegations are being investigated and that the complainant is consistent and stands by the allegations as time passes.

The complainant should be assured at the outset that they will be protected from any retaliation from other employees, especially from the alleged harasser. It should also be made clear that the employer will limit the disclosure of the information during the investigation only to those with a need to know. This will encourage the complainant to speak freely and candidly. However, at the same time, the complainant must be made to understand that it will be necessary to discuss the complainant’s information with the alleged harasser(s) and with others. Rarely will it be possible to conduct an investigation of a charge of harassment without identifying the complainant to the alleged harasser. The investigator should avoid any unnecessary disclosure of information to third-party witnesses. The complainant should be informed that, while their cooperation and information is voluntary, if they are reluctant to name names and provide details, or to sign a statement, the investigation will be compromised and limited.

2.4.3 Interviewing the alleged harasser

An interview with the alleged harasser is almost invariably necessary. Whether they are interviewed prior to other witnesses being interviewed depends on the factual circumstances of the allegations. In some instances, it will be wise to interview other witnesses before talking to the alleged harasser. If a complainant is unclear about what happened, or if they seem confused or they tell inconsistent stories, interviewing other witnesses may help to clarify how the investigation should proceed.

An employment contract or collective bargaining agreement may give employees the right to legal representation or other assistance during an interview. If so, a request for representation or assistance must be honored.

When their identity becomes known, the alleged harasser should be informed that they are being investigated, and why they are being investigated. They should be assured that no predetermined conclusion has been made regarding the subject of the investigation (although the investigator should take care not to give the impression that the investigator or the employer is taking the side of the alleged harasser, or that the investigator thinks the claim is false). The alleged harasser should be told that the investigation will be conducted as confidentially as possible, although the employer should refrain from telling the alleged harasser not to discuss the matter with anyone else. The alleged harasser should hear the harassment allegations in enough detail to allow them to respond fully to the claim. It is important to make the alleged harasser aware that any appearance of reprisal against the complainant should be avoided, and that any retaliation against the complainant or anyone else could be an independent basis for disciplinary action.

Any allegations that the alleged harasser raises that would lead to the conclusion that the harassment claims are untrue or baseless should be explored. This includes any claim or allegation that the harassment was not unwelcome by the complainant. The alleged harasser should be asked to review and sign a statement or the interview notes following the interview.

2.4.4 Interviewing other witnesses

All persons with knowledge of the facts, including those identified by the complainant and the alleged harasser, should be interviewed. Often, it may be necessary to re-interview potential witnesses as facts come to light during interviews with the complainant, other witnesses, and the alleged harasser. In serious cases, signed written statements should also be obtained from the significant witnesses. In addition, the alleged harasser should be provided with an opportunity to respond to adverse statements made by witnesses. Any witnesses involved should be made aware that the investigation is ongoing and confidential, and that they should limit their discussion of the investigation with other parties.

2.4.5 Questions for all interviewees

Questions for all interviewees should be open-ended and include terms to elicit information about what happened, when and where it happened, who did it, who else knows, etc. The interviewer should avoid including details provided from other interviewees that could lead the current interviewee to provide similar responses. Again, signed written statements should be obtained if the facts being provided could be determinative in the outcome of the investigation.

2.4.6 Documentary investigation

It is also prudent to gather any other information that may corroborate or negate the complaint. This information may be contained in emails, text messages, social media posts, etc. In addition, some employers may have key-card access or security camera systems that would provide evidence of where an employee was, and when they were there. Finally, past performance evaluations or complaints should be reviewed to determine whether there is a possibility that the complainant has a bad motive, such as revenge, for bringing the complaint, or if there is a pattern of behavior by the complainant or the alleged harasser.

2.5 Report of investigation

At the conclusion of the investigation an investigation report should be compiled that records all the evidence gathered.

2.5.1 Supporting documentation

Supporting documentation is necessary to maintain the credibility of the investigation. This documentation should include any signed statements obtained from the witnesses interviewed as well as any other relevant documentation.

Employers should remember that written records, including a summary of the interviews and any other findings, will be discoverable if litigation follows. Written statements that support the argument that the employer had a valid basis for taking the disciplinary action will be of great value if a harasser who is subjected to discipline later challenges the actions of the employer. Likewise, if no action is taken subsequent to the investigation, the statements should be helpful in supporting an argument that there was insufficient evidence to justify taking disciplinary measures.

The investigation file should not be kept in the personnel file of the complainant. A copy of the investigation report should be kept in corporate counsel’s office, filed separately by the human resources manager, or otherwise distributed as dictated by company policy. If discipline is imposed, a copy of the disciplinary action should be placed in the alleged harasser’s personnel file.

Section 3 – Follow-up to investigation

Upon completion of an investigation there are a number of steps for the employer to take.

3.1 Communicate outcome

Employers should take care to communicate the outcome of the investigation appropriately.

3.1.1 To complainant and alleged harassers

Once the investigation is complete, the complainant and the alleged harasser should be informed of the results of the investigation, preferably in writing. Throughout the investigation and follow-up communication process, the employer should be cautious to avoid potential liability for defamation. Any information related to the complaints and the investigation should never be disseminated beyond those persons with a direct need to know.

If the investigation determines that harassment has occurred, the employer must take prompt remedial action. This will likely involve taking disciplinary action against the harasser and advising the complainant that action has been taken, and what that action was. Ending the current harassment, or merely obtaining a promise that the harassment will stop, is not an adequate measure. Adequate remedial action is action reasonably calculated to prevent further harassment, both by the current harasser and by other employees. The disciplinary steps should be proportionate to the harassing conduct. For relatively minor conduct that the harasser might not have realized was offensive (eg, a pattern of telling ethnic jokes), a verbal admonition may be sufficient.

The employer should make all parties aware that the workplace will continue to be monitored to prevent any future occurrences. In addition, the alleged harasser and all supervisory personnel should be made aware that any retaliatory action against the complainant will not be tolerated.

3.1.2 To other employees

Where other employees have become aware of the complaint and the investigation, it is important to communicate some form of update and outcome. There is usually a qualified privilege that will protect company investigators and witnesses from claims for defamation provided that the statements they make are made in good faith and for a lawful purpose, and are made to a party who has a legitimate interest in the information, or who has a duty to receive that information (eg, an attorney or professional investigator). However, statements that are made maliciously or recklessly abuse the privilege and the person making those statements may be liable for defamation. See Bahr v Boise Cascade Corp, 766 NW2d 910 (Minn 2009).

Where appropriate to communicate with other employees, the communication should be limited to letting employees know that an investigation was conducted and that appropriate action was taken. The statement should reiterate that the employer makes every effort to ensure that employees understand all policies and procedures, and also understand the employer’s commitment to preventing and correcting inappropriate workplace conduct.

3.2 Disciplinary actions

Any potential contractual issues should be reviewed before disciplinary action is taken. If, for example, an employee is covered by a collective bargaining agreement, that agreement may limit the employer’s ability to take disciplinary action against a harassing employee.

3.2.1 Determine appropriate disciplinary action

A written reprimand is often sufficient because it creates a permanent record of the employer’s action and is evidence of the employer’s determination to deter the conduct. When the harassing conduct is more egregious (eg, sexual harassment), stronger discipline may be appropriate. For example, it may be appropriate to demote a supervisor from a supervisory position to a lower-raking hourly position. If permitted by an employment contract or collective bargaining agreement, a harasser may be denied a salary increase or bonus. The most extreme disciplinary action is termination, which may be required depending on the severity of the violations and whether there is a need to ensure the behavior is not repeated upon the current complainant or any other employee.

An employment contract may include provisions that state that an employee will be terminated only ‘for cause.’ A terminated employee may also attempt to make an unemployment insurance claim. To rebut any claim that the employee was terminated without cause, it is important to have a record of the cause for the termination. The employer must respond to any repeat conduct. Whether the employer’s next response is reasonable will depend on whether or not the employer progressively strengthens its discipline. Repeat conduct indicates an unreasonableness on the part of the employee to respond to the discipline. An employer is not liable for future offenses, if the employer’s response to each incident was reasonable. Employers are not required to terminate a harasser unless termination is the only disciplinary response that could be construed as reasonably calculated to end the harassment.

3.2.2 Corrective action

The employer should be aware that although the conduct in a particular case might not have risen to the level of being unlawful, employees should understand that any harassing behavior will not be tolerated in the organization. This should be made clear in any subsequent communications with employees. Following a harassment complaint an employer should consider actions such as additional harassment training for all employees, modifying the existing onboarding training for new employees, and posting signs or placards reiterating a commitment to EEOC and compliance with all employment laws and regulations.

3.3 Lessons learned

The consequences to an employer of workplace harassment can be severe. The EEOC and private litigants may obtain an award of damages (42 US Code section 12188), and may also obtain injunctive relief (42 US Code section 2000a-3). In addition, an employer identified publicly as a workplace where employees are harassed is likely to sustain reputational damage.

3.3.1 Prevention

At the conclusion of the investigation, the focus of the organization should shift to preventing any future occurrences. Employers should ensure that their policy includes a clear definition of harassment, including information about the different forms harassment takes.

The policy should then describe how employees should report harassment, whom to report it to, and the consequences for harassment. Employers should consider a multi-channel reporting procedure that would allow employees to bring complaints to more than one member of management.

Management could ensure that employees understand the policy by asking questions informally and sharing hypothetical examples so everyone regularly gets a mini refresher course in what harassment is.

3.3.2 Reassess policy

Periodically, but especially upon the conclusion of a harassment case, the employer should re-examine the company policy against harassment. This should include a review, and revision where appropriate, of the employee handbook and any other materials disseminated to employees. If deemed appropriate, additional training may subsequently be required of employees.

While strong policies and training are essential, a workplace culture that genuinely values respect, diversity, and inclusion is the most effective defense against harassment. Leaders and managers must not only adhere to the policy themselves but also actively promote an environment where employees feel safe reporting issues without fear of retaliation. Furthermore, a swift and decisive response to every complaint—including a thorough investigation and appropriate corrective action—sends a clear message that the organization takes all allegations seriously and will enforce its zero-tolerance stance against harassment.

Additional resources:

US Department of Justice, Reporting, Investigating, and Taking Action on Allegations of Sexual Harassment and Sexual Misconduct
US Equal Employment Opportunity Commission, Chart of Risk Factors for Harassment and Responsive Strategies – Harassment