The standard protocol among most employers when investigating a complaint of discrimination or harassment in the workplace is to instruct employees not to discuss the matter for obvious reasons, i.e. limit exposure to liability, and prevent attempts to taint the investigation process by putting a lid on the gossip mill so that employees are not led to modify or recant their statements. However, based on a recent letter from the United States Equal Employment Opportunity Commission, policies that warn employees that they could be subject to discipline or discharge for discussing an ongoing internal investigation may be unlawful. The EEOC claimed that the policy is illegal under Title VII, which prohibits workplace harassment and discrimination on the basis of, inter alia race, sex, and religious belief.
The letter from the EEOC field office in Buffalo, which is dated August 3, 2012, is written to an unidentified employer and states:
“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.”
Employers may find some comfort in the fact that this letter is not yet EEOC law, and the analysis above may be limited to the specific charge of sexual harassment discussed therein. However, this rule does coincide with a similar decision by the National Labor Relations Board and seems to be going in the direction of becoming a legal standard.
For now, it is still okay to ask employees not to discuss the specific facts of any interviews that take place during an ongoing internal investigation. But, the above letter should serve as a cautionary reminder to employers that they risk running afoul of the protections afforded to employees under Title VII if they impose a blanket prohibition against any form of discussion whatsoever regarding an ongoing internal investigation of harassment or discrimination. Thus, until further guidance is provided by the EEOC, a well-planned and documented investigation wherein employees are interviewed quickly (without an opportunity to coordinate their stories) has become even more critical. Employers who establish, disseminate and enforce policies and complaint procedures, conduct prompt, thorough and impartial investigations and take appropriate corrective action are afforded an affirmative defense to these types of complaints.