Documenting a workplace investigation for employers
The EEOC recommends, in promising practices it says are not legal requirements, that people who handle a harassment complaint document the complaint from initial intake to resolution and prepare a written report covering the investigation, findings, recommendations, any discipline imposed and any corrective and preventative action taken. The EEOC voted 2-1 on January 22, 2026 to rescind its 2024 harassment guidance.
What should I do first when an employee complains of harassment or discrimination?
The EEOC says an effective response to a harassment complaint often involves two steps, an investigation and, if needed, appropriate corrective action, and that there is no one-size-fits-all approach. For intake, the EEOC’s promising practices say a complaint system may describe the information the organization requests from the person complaining, even if that person cannot provide all of it. The information is the people accused, the people the conduct allegedly affected and any witnesses, the dates, the locations and a description of the alleged harassment.
Is the EEOC’s 2024 harassment guidance still in effect?
On January 22, 2026, the EEOC voted 2-1 to rescind its 2024 Enforcement Guidance on Harassment in the Workplace, and as of November 5, 2026 the EEOC’s harassment page says its information is being reviewed and will be revised. The EEOC’s votes page logs the vote on January 22, 2026 as approved 2-1.
EEOC Chair Andrea Lucas said rescinding the guidance “does not give employers license to engage in unlawful harassment” and that the federal laws against discrimination, harassment and retaliation “remain firmly in place.”
As of November 5, 2026, the pages that carried the 2024 guidance and its summary of key provisions return a page-not-found error, and the EEOC’s website shows no replacement harassment guidance. The EEOC’s 1999 guidance on harassment by supervisors is still posted, with a “Rescinded” banner saying the 2024 guidance superseded it on April 29, 2024. The 1999 page does not say whether that document is operative again.
Am I required to investigate every complaint?
The EEOC states when an employer is liable for harassment, and its small business fact sheet says an employer should consider how to conduct a prompt, impartial and thorough investigation to decide whether harassing conduct occurred.
For harassment by non-supervisory employees or by non-employees over whom it has control, the EEOC says the employer is liable if it knew or should have known about the harassment and failed to take prompt and appropriate corrective action. The EEOC’s harassment page says that when a supervisor’s harassment creates a hostile work environment without a negative job action, the employer can avoid liability only if it proves that it reasonably tried to prevent and promptly correct the harassing behavior and that the employee unreasonably failed to use the preventive or corrective opportunities the employer provided. That page carries a notice that its information is being reviewed and will be revised.
In California, the California Civil Rights Department (CRD) says the first step is to decide whether a reported behavior is serious enough for a formal investigation, and that when a report alleges conduct that would violate the company’s policies or the law if true, the employer must investigate to make a factual determination about what happened. The CRD’s guide is addressed to California employers.
How quickly do I need to start and finish an investigation?
The EEOC says an employer should consider how to conduct a prompt, impartial and thorough investigation, and neither its harassment page nor its small business fact sheet gives a number of days for “prompt.” Its small business fact sheet says employers are responsible for quickly ending harassing behavior once they learn about it, even if the conduct has not yet become severe or frequent enough to create a hostile work environment.
The California Civil Rights Department says investigators should start the investigation promptly and as soon as is feasible, because a prompt investigation helps stop the behavior and helps preserve evidence and memories. The CRD guide sets no deadline. It describes what some companies do, which is act the same day on physical harassment or a threat of violence, contact the complaining party within a day or two on less urgent matters and strive to finish within a few weeks, although that depends on several factors. The CRD presents these as practices, not requirements.
Who should run the investigation, and can I do it myself?
The EEOC’s promising practices recommend that the employees who receive, investigate and resolve complaints be “well-trained, objective, and neutral” and have the authority, independence and resources to do the job. The document speaks of employees responsible for these tasks and does not say the investigator must be an outsider.
A footnote in the promising practices says a small business may be able to prevent and correct harassment without formal, written harassment policies, and gives the example of an owner who tells employees verbally that harassment is prohibited, accepts reports directly, investigates promptly, thoroughly and impartially, and takes swift and appropriate corrective action.
The California Civil Rights Department says the investigation should be impartial, that the employer must find someone else if the investigator cannot be neutral, and that it is “generally a bad idea” for the investigator to hold a position of less authority than the complainant or the accused. It says an employer may use an employee, often someone from human resources, or an external investigator, and that in California external investigators must be licensed private investigators or attorneys acting as attorneys. That licensing rule is California only.
What steps make an investigation fair, thorough and impartial?
The EEOC says the steps to take, the evidence to gather and the people to interview depend on the particular facts and circumstances of the allegations, and its small business fact sheet gives no step sequence. The promising practices recommend using guidelines to weigh the credibility of all relevant parties.
The sequence comes from the California Civil Rights Department, which lists these among the steps a fair investigation involves for California employers.
* Interview the complaining party thoroughly, starting there whenever possible.
* Give the accused party a chance to tell their side by making the allegations clear and asking for a response, which the CRD says does not require showing the accused party a written complaint.
* Interview relevant witnesses and review relevant documents, though not necessarily every one a party suggests.
* Reach a reasonable and fair conclusion based on the information collected.
The CRD guide says investigations should not be interrogations and should use open-ended questions on all areas relevant to the complaint. When accounts conflict, it lists inherent plausibility, motive to lie, corroboration, history of honesty or dishonesty and inconsistent statements, among other factors, that an investigator can use to weigh credibility.
What should I document during an investigation?
In its promising practices, which the EEOC says are not legal requirements, the EEOC recommends that people who handle complaints document every complaint from initial intake to resolution and prepare a written report covering the investigation, findings, recommendations, any discipline imposed and any corrective and preventative action taken. The recommendation names no form, template or format for that documentation and no retention period.
The California Civil Rights Department says investigators should carefully and objectively document witness interviews, the findings made and the steps taken. Its acceptable methods are handwritten or computer notes, statements drafted from what the witness said for the witness to sign, statements written by the witness, and recordings of virtual interviews, so long as the information is reliable, thoroughly documented and not altered. The CRD guide says it is advisable to be consistent in method.
What standard should an investigator use to reach findings?
The California Civil Rights Department says investigators should make findings on the preponderance of the evidence standard, also described as more likely than not, and should not apply a higher standard such as clear and convincing evidence or beyond a reasonable doubt. The CRD says investigators should reach factual conclusions, not legal conclusions, meaning findings about what happened rather than whether conduct was unlawful, although internal investigators may also decide whether conduct violated company policy. These points are California agency guidance in the CRD guide for California employers.
How confidential can I keep an investigation?
The EEOC’s wording is that employers protect privacy “to the greatest extent possible,” consistent with a thorough and impartial investigation, not that an investigation is kept completely confidential. The EEOC’s promising practices say a harassment policy can promise confidentiality to the extent possible and permitted by law for those who report harassment, the people it allegedly affected, witnesses and the people accused. The small business harassment policy tips say to state that the employer will protect the confidentiality of employees who report harassment or participate in an investigation to the greatest possible extent. Both are recommendations. Footnote 21 of the promising practices flags that the National Labor Relations Act restricts when employers may require employees to keep investigation information confidential.
The California Civil Rights Department says employers and their agents can only promise limited confidentiality, because information is shared with those who need to know and the accused party must be told the nature of the complaint before discipline. The CRD says National Labor Relations Board guidance on whether employers can require confidentiality during an open investigation is evolving, and that employers should consult an attorney.
What if the employee asks me not to act, or the complaint is anonymous?
The California Civil Rights Department says it is rarely appropriate to skip an investigation because an employee asks not to elevate a complaint or says they will handle it. For minor allegations, the CRD says the employer can coach the complainant and should follow up to confirm the harassment has stopped. For more serious allegations, it says the employer must take appropriate action and it is not appropriate for the complainant to handle the matter alone. The EEOC’s small business fact sheet says employers are responsible for quickly ending harassing behavior once they learn about it.
The CRD says employers should investigate anonymous complaints in the same manner as named ones, depending on the detail given, and that the fact a complaint is anonymous is not a reason to ignore it. If the information is general, the employer may need an environmental assessment, which means finding out what is taking place without focusing on one complaint or person, such as by interviewing a work group. This is California agency guidance in the CRD guide.
How should I treat the people involved while an investigation is open?
The EEOC’s promising practices recommend processes to ensure that the person accused is not prematurely presumed guilty or prematurely disciplined for harassment. The EEOC’s retaliation Q&A says an employer retaliates when it takes a materially adverse action because a person engaged in protected activity, and that a materially adverse action is any action that might deter a reasonable person from engaging in protected activity, including an action with no tangible effect on employment. The EEOC’s retaliation page lists acts that could be retaliation, depending on the facts, if taken because of EEO activity. They include a reprimand or lower-than-deserved performance evaluation, a transfer to a less desirable position, increased scrutiny, and changing a work schedule to conflict with family responsibilities.
How do I protect the complainant and witnesses from retaliation?
The EEOC’s small business pages list steps that include telling employees retaliation is prohibited, assuring them they will not be punished for reporting or participating, responding promptly and effectively to complaints, and treating employees consistently. The EEOC also says to treat the employee as if the employee had not reported discrimination, and that retaliation is illegal even if the EEOC concludes the charge lacks merit.
The EEOC says participating in a complaint process is protected from retaliation under all circumstances. Its retaliation page lists answering questions during an employer investigation of alleged harassment as a protected act, and says employers may discipline or terminate for non-retaliatory, non-discriminatory reasons but may not do anything in response to EEO activity that would discourage someone from resisting or complaining about future discrimination. If a manager recommends an adverse action after an employee engages in protected activity, the EEOC’s technical assistance says the employer may reduce the chance of potential retaliation by independently evaluating whether the action is appropriate.
The California Civil Rights Department says retaliation can occur at any time, including through negative performance reviews, a heavier workload, reassigned projects or ostracizing, and that employers should tell complainants and witnesses that retaliation violates the law and their policies and counsel all parties and witnesses not to retaliate.
How do I tell people the outcome, and what corrective action fits?
The EEOC’s promising practices recommend processes to convey the resolution of the complaint to both the person who complained and the person accused and, where appropriate and consistent with relevant legal requirements, the preventative and corrective action taken. The California Civil Rights Department says it is good practice to check back with a complainant after an investigation is completed, whether or not the allegations were found correct.
On corrective action, the EEOC’s small business fact sheet says an employer is not required by law to fire a person found to have harassed, that the goals are to “stop the harassment now and prevent future harassment,” and that the employer decides the corrective action. Its examples range from informal counseling and a written warning to suspension without pay, reassignment, demotion and termination. The promising practices recommend discipline that is “prompt, consistent, and proportionate to the severity of the harassment,” which the EEOC says is a recommendation, not a legal requirement. The EEOC’s page on discipline and termination says to consider documenting the reasons, which “may help you defend your business” if a discrimination charge or complaint is filed.
How long must I keep investigation and personnel records?
Under 29 CFR 1602.14, an employer preserves any personnel or employment record it makes or keeps for one year from the date of the record or the personnel action, whichever is later, and, once a charge under Title VII, the ADA or GINA is filed, preserves all personnel records relevant to the charge until final disposition of the charge or action, and the regulation does not name harassment complaints, investigation files, interview notes or investigation reports.
Neither the regulation nor the EEOC’s recordkeeping page says whether an investigation file is a personnel or employment record, and the regulation introduces its examples of covered records with “including but not necessarily limited to.” For an involuntary termination, the terminated person’s personnel records are kept for one year from the date of termination. “Final disposition” means the date the statutory period for the aggrieved person to bring a court action expires or, where an action is brought, the date the litigation is terminated. The EEOC’s recordkeeping page says its recordkeeping requirements apply to employers covered by the federal anti-discrimination laws, whether or not a charge has been filed.
As of November 2026, the regulation was last amended on May 28, 2024, and an EEOC proposed rule of July 23, 2026 on reporting requirements (91 FR 46332) says the Commission is not proposing to rescind general record preservation requirements such as 29 CFR 1602.14. The rule is only a proposal. In California, the California Civil Rights Department says it is a recommended practice to retain all documentation of an investigation and to keep handwritten notes even if they are typed up.
How long can a charge be filed after the conduct, and does my internal investigation change that?
The EEOC says a charge generally must be filed within 180 calendar days of the discrimination, extended to 300 calendar days where a state or local agency enforces a law prohibiting employment discrimination on the same basis, and that for harassment the clock runs from the last incident. For age discrimination, the EEOC says the extension to 300 days applies only if a state law prohibits age discrimination in employment and a state agency or authority enforces it, not if only a local law does. The EEOC says it will look at all incidents of harassment when investigating a charge, even if earlier incidents were more than 180 or 300 days earlier. It also says time limits for filing a charge generally will not be extended while a person attempts to resolve a dispute through another forum, such as an internal grievance procedure, and that other forums may be pursued at the same time as an EEOC charge.
In California, the California Civil Rights Department says a complaint of harassment, discrimination or retaliation may be filed with the CRD within three years of the date of the alleged unlawful act or acts.
What should I do when the EEOC sends me notice of a charge?
The EEOC’s small business guidance says to follow the directions on the notice, respond to EEOC requests for information even if the employer believes the charge is frivolous, protect employees from retaliation and retain relevant documents. If an employer is unsure whether a document is relevant, the EEOC says to ask the EEOC investigator. The EEOC also says a charge is a complaint of discrimination, not a determination that discrimination has occurred, that an employer is not required to hire a lawyer to respond, and that EEOC mediation is available.
What does California require of employers on harassment complaints and training?
The California Civil Rights Department says California’s Fair Employment and Housing Act requires employers to take reasonable steps to prevent and correct discriminatory or harassing behavior. The CRD says California law requires employers to develop and distribute a written policy for the prevention of harassment, discrimination and retaliation, and that the policy must establish procedures for responding to and investigating complaints, including prompt, thorough and fair investigations and prompt and fair remedial action. The CRD guide says it is for informational purposes only and is not legal advice.
On training, the CRD’s information sheet for employers, dated October 2025, says Government Code section 12950.1 requires employers of 5 or more employees to provide sexual harassment and abusive conduct prevention training. Every two years, non-supervisory employees need 1 hour and supervisors need 2 hours, and new supervisors must be trained within six months of assuming the supervisory position and new non-supervisory employees within six months of hire. The sheet says the next training deadline is January 1, 2027, and that employers must keep training documentation for a minimum of two years and should keep it on the employer’s premises.
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