Is Instructing an Employee Not to Discuss an Investigation a Violation of Title VII?

by Lorene F. Schaefer, Esq.

It seems that at least some offices of the EEOC may be adopting the position that employers are in violation of Title VII if they have policies that warn employees who participate in an internal investigation that they could be subject to discipline or discharge for discussing the investigation.  In a letter dated August 3, 2012, the Buffalo, NY office of the EEOC notified an employer that it was expanding its investigation into a discrimination charge and giving the employer an opportunity to respond. Here is the relevant excerpt from the letter:

“You have admitted to having a written policy which warns all employees who participate in one of your internal investigations of harassment that they could be subject to discipline or discharge for discussing “the matter,” apparently with anyone.

EEOC guidance states that complaining to anyone, including high management, union officials, other employees, newspapers, etc. about discrimination is protected opposition.  It also states that the most flagrant infringement of the rights that are conferred on an individual by Title VII’s retaliation provisions is the denial of the right to oppose discrimination.  So, discussing one’s complaints of sexual harassment with others is protected opposition.  An employer who tries to stop an employee from talking with others about alleged discrimination is violating Title VII rights, and the violation is “flagrant” not trivial.  In this case, telling the ___ women who complained of harassment that they were not to tell others about the alleged harassment is enough to constitute a harm under Title VII.  There does not have to be a separate adverse action.  In addition, your written policy is so broad that a reasonable employee could conclude from reading it that she could face discipline or charge for making inquiries to the EEOC about harassment if that harassment is being or has been investigated internally by your organization.”

Obviously, this letter from the Buffalo office is not law and the analysis stated therein may be limited to the Buffalo office and perhaps even to this specific charge.  This letter does, however, highlight some of the challenges and potential pitfalls for employers as they investigate claims of discrimination or harassment in today’s dynamic legal environment.

My understanding is that other offices of the EEOC may be taking similar positions.  I would be interested in hearing from readers who have experience with this issue in other offices of the EEOC.

Insights for Employers

Good employers recognize the importance of having compliance programs that ease the filing of employee complaints and provide for prompt, thorough and impartial investigations.  Employers who establish, disseminate and enforce anti-harassment policies and complaint procedures and conduct prompt, thorough and impartial investigations and take appropriate corrective action are afforded an affirmative defense to sexual harassment complaints.

In my blog last week, I suggested that, in light of the NLRB’s controversial decision in Banner Estralla Medical Center, the need for speed in a workplace misconduct investigation was increased.  If the EEOC intends to take the position that an employer’s confidentiality instruction to an employee during a harassment investigation is itself a violation of Title VII, then the need for a very prompt and well-planned investigation where employees are interviewed quickly (without an opportunity to coordinate their stories) becomes even more critical.

For those employers who conduct internal investigations in-house, ensuring that their investigators keep their skills up-to-date is also crucial. For employers who do not have professional staff with the experience, knowledge, and expertise to conduct legally defensible workplace investigations, I suggest they proactively identify an outside investigator who possesses these qualifications.  Workplace investigators are kind of akin to plumbers – you hope to never to need one, but when you do need one you need a good one and you need them fast.

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9 Responses to Is Instructing an Employee Not to Discuss an Investigation a Violation of Title VII?

  1. alixweb says:

    Balancing the employer’s need to avoid witness collusion and protect the innocent during an internal investigation with the employee’s right to complain about workplace misconduct has become a real challenge in light of these decisions. Isn’t it ironic that the very mechanism designed to address employee complaints in a fair and equitable manner is now under attack by the EEOC and the NLRB?

  2. Pingback: Is Instructing an Employee Not to Discuss an Investigation a Violation of Title VII? | WinWinHR

  3. Pingback: Employers Beware: Is EEOC Joining the NLRB to Require that Employers Not Instruct Employees to Maintain the Confidentiality of an Ongoing Investigation of an Employee Complaint? : Employment Matters Blog : Mintz Levin: Employment, Labor & Benefits Law

  4. Pingback: Employers Beware: Is EEOC Joining the NLRB to Require that Employers Not Instruct Employees to Maintain the Confidentiality of an Ongoing Investigation of an Employee Complaint? | Privacy & Security Matters

  5. Pingback: EEOC Says Employers Cannot Demand Silence From Their Employees During A Harassment Investigation | Kluger, Kaplan, Silverman, Katzen & Levine, P.L.

  6. Wow, this piece of writing is good, my younger sister is analyzing
    such things, so I am going to convey her.

  7. Pingback: Shhh . . . Can I Make Her Keep a Secret? The EEOC on Confidentiality during Investigations | Gonzalez Saggio & Harlan

  8. Pingback: Employers Beware: Is EEOC Joining the NLRB to Require that Employers Not Instruct Employees to Maintain the Confidentiality of an Ongoing Investigation of an Employee Complaint? | Privacy & Security Matters

  9. Pingback: Employers Beware: Is EEOC Joining the NLRB to Require that Employers Not Instruct Employees to Maintain the Confidentiality of an Ongoing Investigation of an Employee Complaint? | Employment Matters Blog

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