Evaluating workplace harassment claims is a fact-intensive process and the EEOC will consider the total facts and circumstances of each case. When evaluating a claim of third party harassment, the EEOC Compliance Manual instructs EEOC investigators to determine whether:
1. The employee or anyone else reported or complained of the harasser’s conduct;
2. The employer, an agent, or a supervisor observed or was in a position to observe the conduct; or
3. The employer, an agent, or a supervisor was or should have been otherwise alerted to the conduct (if, for example, the conduct was discussed in the presence of the employer, an agent, or a supervisor).
In determining whether the employer took immediate and appropriate corrective action, the Compliance Manual directs investigators to ascertain:
1. What action, if any, was taken;
2. When it was taken; and
3. Whether it fully remedied the conduct without adversely affecting the terms or conditions of employment in some manner (for example, by requiring the employee to work less desirable hours or in a less desirable location).