Silence Is Golden? According to the EEOC, Perhaps Not

Silence Is Golden? According to the EEOC, Perhaps Not

By Julie Loring

A common practice among employers when investigating an employee’s complaint of harassment or discrimination is to instruct the employees involved to keep the matter confidential. Confidentiality during an investigation serves many purposes, including protecting the integrity of the investigation, protecting the complainant from retaliation, and serving the employer’s broader interest in ensuring that other employees feel that they can file complaints about discriminatory and/or harassing behavior without being retaliated against or otherwise subject to office gossip.

Despite the numerous benefits of requiring employee confidentiality during investigations, it seems that at least one U.S. Equal Employment Opportunity Commission (EEOC) field office disagrees. In an August 2012 letter sent from the Buffalo EEOC field office, the Commission warned that the unnamed employer’s practice of prohibiting workers from discussing ongoing investigations was unlawful under Title VII of the 1964 Civil Rights Act. Specifically, the letter stated, “[a]n 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.” The letter continued, stating that the employer’s action in telling women who complained of harassment that they were not to tell others about the alleged harassment was enough to constitute harm under Title VII. The letter further explained that the employer’s written policy was so broad that a reasonable employee could conclude that she could face discipline for making inquiries to the EEOC during or following the conclusion of the employer’s investigation.

The August 2012 EEOC letter follows a recent decision by the National Labor Relations Board (NLRB) that struck down another employer’s similar request for employee silence. In the Banner Health System case¹ , the NLRB found that the employer violated the National Labor Relations Act (NLRA) by asking an employee who was the subject of an internal investigation to refrain from discussing the matter while the human resources department conducted the investigation. The human resources representative who made the request did not threaten the employee with any type of discipline for failing to maintain confidentiality. In its decision, however, the NLRB held that the employer’s request for confidentiality, even without the threat of discipline, “had a reasonable tendency to coerce employees, and so constituted an unlawful restraint of Section 7 [NLRA] rights.” According to the NLRB, an employer’s “generalized concern with protecting the integrity of its investigations is insufficient to outweigh employees’ Section 7 rights.”

While these recent cases may be troubling for employers, the EEOC Buffalo field office letter is not yet EEOC law. Indeed, it is unclear if this single letter is indicative of what is to come from the EEOC, or if the Buffalo EEOC office’s determination is limited to that specific charge. Accordingly, employers may still require that employees maintain confidentiality regarding the specifics discussed during investigatory interviews, but they should refrain from policies or practices that prohibit any form of discussion with third parties.

Employers still have an interest in protecting the integrity of their investigations, as well as the employees who come forward with complaints. A blanket prohibition against discussing the matter, however, should be avoided.

Disclaimer: The views and opinions expressed in this article are those of the individual sources referenced and do not reflect the views, opinions or policies of the organizations the sources represent.

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