The employer called an employee in to ask questions about rumor circulating among staff about an alleged sexual relationship with another staff member. In the interview with the employee were the CEO and a Board member. Is it legal for this type of interview/investigation to take place in the presence of a person who is not staff or counsel? Also, is it legal for the employer to act on such rumors and does the interview release them from any liability regarding sexual harassment?

Ann Kiernan replies:

It is certainly unusual to have the CEO and a Board member involved in workplace investigations, but there is nothing illegal about it. However, they should make sure to comply with the EEOC’s Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, including its mandates to protect the confidentiality of harassment allegations to the extent possible, and to objectively gather and consider the relevant facts. The EEOC also says that: “Whoever conducts the investigation should be well-trained in the skills that are required for interviewing witnesses and evaluating credibility.”

While the employer cannot take action based on pure rumor and gossip, it can (and should!) take action when the rumor is confirmed by a proper investigation. But, merely doing a workplace investigation is not enough to prevent liability. The US Supreme Court has held that an employer is always liable for a supervisor’s harassment if it results in a tangible employment action. In other harassment cases, the employer may be able to avoid liability by establishing that it exercised reasonable care to prevent and correct promptly any harassing behavior, which includes doing a prompt, thorough, and impartial investigation.

Posted 02-10-2016

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.