EAP referral in response to complaint doesn't cancel employer's duty to conduct probe

Referring an employee to an employee assistance program (EAP) doesn't absolve an employer from conducting a proper investigation.

Facts

A recent New York Times article, "You're the Problem: When They Spoke Up About Misconduct, They Were Offered Mental Health Services," described a Google employee who was moved to a new team after she became pregnant and reported discrimination to HR. As a result, she was offered 10 free sessions with an EAP counselor who was contracted by the company and available on the company's campus.

A year later, after the employee filed a pregnancy discrimination claim, the counselor let the worker know she was "really nervous and uncomfortable" seeing her after the company had asked for access to records of their sessions. The employee now felt like the counselor was dumping her and became concerned about the employer's access to her records.

3 lessons about EAPs

First, should you encourage an employee who is reporting uncomfortable feelings to seek EAP services? The answer is yes, as long as you (1) legitimately believe it may assist the individual and (2) still investigate any discrimination, harassment, or retaliation allegation.

An EAP isn't a means around doing a legitimate probe. While a referral may help employees who feel they are being treated wrongly, you still must investigate the underlying allegation.