It has been widely reported that the EEOC is following the NLRB’s lead when it comes to analyzing company policies. It seems that company policies regarding confidentiality during harassment investigations are under fire. In a letter dated August 3, 2012, the EEOC’s Buffalo, New York office notified a company that the EEOC was expanding its investigation of a discrimination charge because the employer’s policy mandated that employees keep the investigation confidential while the investigation was being conducted. The EEOC specifically stated that the company had “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.”
In the letter, the EEOC pointed out that “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.”
The letter is not a formal decision or policy, nor is it law, but it does give employers a preview of how investigators may react to policies that prevent employees from discussing their claims. It is common for companies to require confidentiality during ongoing investigations. After all, if employees are allowed to talk, that can lead to employees “getting their story straight” to support the accused, or at minimum, spreading rumors about incidents that are merely alleged. So what now?
- Modify Applicable Policies.
If you have any written policies that mandate confidentiality during ongoing investigations, you may want to consider modifying them so instead they “request” confidentiality. The policy should also remove any language that can be interpreted to mean breaking confidentiality will lead to an adverse employment action. Also be sure the policies provide that employees will not be retaliated against for participating in both EEOC and internal investigations.
- Do Not Mandate Confidentiality.
When speaking to employees during the investigation, request that they keep the matter confidential but don’t tell them they must do so. Talk to the employee about the ramifications of talking and how that may affect the investigation. Particularly the accuser and the accused may appreciate the value of keeping the investigation private.
Keep in mind again that this letter is not a formal decision. However the argument by the Buffalo office in this letter to support the investigation into the company’s confidentiality policies seem to be in line with the EEOC and the NLRB’s recent thinking. You do not have to take any action in response to this letter, but if your company has a policy that mandates confidentiality during ongoing investigations, at minimum you should be watching closely.
If you have more questions about investigation policies or other employee policies, please contact Waltz, Palmer & Dawson, LLC at (847)253-8800.