Is EEOC following NLRB’s lead on confidentiality in investigations?

Listen to this article

Before lawyers had time to digest the recent ruling from the National Labor Relations Board that an employer violated federal labor law by requesting confidentiality from all employees during internal investigations, they faced another question: was the Equal Employment Opportunity Commission taking the same position?

Legal blogs and social media outlets were set ablaze by an Aug. 3 letter sent from the EEOC’s Buffalo, N.Y., office to an employer that is the subject of a discrimination charge.

According to an excerpt from the letter being circulated online, which does not identify the parties involved, the regional EEOC office warned the employer that Title VII protects the right of employees to complain about discrimination, and that denying employees the right to oppose discrimination is “the most flagrant infringement” of that right.

“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,” the letter states. “In this case, telling [the employees] 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.”

Though the letter doesn’t constitute a ruling or have precedential effect, employment lawyers took notice.

Since neither the EEOC nor any of its regional offices had issued an opinion outlawing internal investigation confidentiality requests, the letter “was a bit of a surprise,” said Melanie J. Beardsley, an associate in the Buffalo office of Hodgson Russ, who wrote an alert to clients about the letter.

John Christopher, a partner in the same office, said the letter also leaves unanswered questions, such as whether a prohibition on confidentiality applies only to the employee complaining of discrimination, or also to others.

“I think employers will be looking at the different levels of treatment between the complaining person and the subject of the complaint and the witnesses,” Christopher said.

Lawyers said they are giving clients largely the same advice that was given after the NLRB ruling: Take a hard look at employee handbooks, policies and practices to make sure they are free of broad, blanket confidentiality agreements in connection with internal investigations. And although the use of confidentiality can be justified in certain contexts, until the EEOC issues a ruling or guidance on the matter, employers will have to tread carefully.

Employers should “look at every investigation on a case-by-case basis and have some good reason to justify why [they] are encouraging the use of confidentiality,” Christopher said.

Beardsley said she is advising her clients to conduct a pre-investigation analysis to determine which individuals involved should be asked to keep their interviews confidential, and to keep the period of confidentiality short, not to exceed the time it takes the company to come to a finding.

“That [puts] the employer in a strong position to say, “We don’t have a blanket requirement,” she said. “We are making a fact-specific analysis … to protect the person who is complaining and to make sure that certain information that should get out is getting out so employers can address it.”

But, Beardsley stressed, employers should not panic. The letter could simply reflect a single, extreme case, as opposed to a broad EEOC policy.

“I think that employers need to take the letter with a bit of a grain of salt, because it could be a fact-specific case,” Beardsley said.