If you have been reading the last few posts here at The Emplawyerologist, you have seen why it is important to know when and why you might need to conduct an investigation, who should or should not conduct the investigation, and that how you conduct the investigation can mean the difference between significant, minimal or no liability. Last week we discussed whether you can keep your investigations confidential, and if so are there limits. In particular, while it was not exactly a new subject we got ourselves some clarity on the NLRB‘s position of requiring confidentiality in workplace investigations, and why even employers of non-unionized workplaces need to pay attention to the NLRB. It would seem then, we have at least covered all the basics, haven’t we? Well, we have just one more piece: The EEOC has also weighed in on whether, when and how an employer can require confidentiality in workplace investigations. Join us after the jump to learn what it’s all about!
So, what’s up with the EEOC and workplace investigations? Clearly the EEOC wants employers to investigate harassment and other employment discrimination allegations, right? Is the EEOC stating that requiring confidentiality is illegal? Is this a new position or directive by the EEOC? Here are the short answers: Yes, the EEOC wants employers to conduct workplace investigations. No it is not saying that confidentiality requirements are per se illegal, and no the material we are discussing is not particularly new. The EEOC’s most recent statements on this topic are about a year old. I am discussing it here and now, because I would be remiss in posting a series of articles about workplace investigations if I ignored this issue and sent you on your merry way. So, here we are.
As we discussed in last week’s post (click here for a review) confidentiality has been a cornerstone for employers conducting workplace investigations. If employees can discuss the matter together before being interviewed, employers often have more difficulty getting to the truth. Such discussions could lead to witness harassment or intimidation. There is also the not insignificant interest in protecting the privacy of the accuser and/or the alleged harasser.
Last year, the EEOC’s Buffalo District Office issued a pre-determination letter voicing similar concerns to the NLRB, but with respect to anti-retaliation provisions of Title VII. For those new to this area of the law, Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, creed, color, religion, sex, and national origin in employment. Title VII also prohibits retaliation against anyone who complains about, objects to, or cooperates in investigations of allegations of such discrimination. Here is the confusing part: An employer investigating Title VII violations, who is looking to ensure the integrity of such an investigation, finds itself the target of Title VII violations because it conducted an investigation and required confidentiality in order to ensure the integrity of the investigation of the underlying allegations of Title VII violations???? What?? No, you did not miss anything. Let’s examine the specific facts to understand what the EEOC is really saying.
The employer policy in question warned employees that discipline, including termination, could result for discussing the alleged discrimination with others. The EEOC found this policy overbroad, and, as such, a “flagrant” violation of Title VII. The EEOC, in its letter to the employer in question, cites one of its Enforcement Guidances, which in turn states that “complaining to anyone, including high management, union officials, other employees, newspapers, etc about discrimination is protected opposition”. The EEOC apparently equates such a broad prohibition against discussing discrimination allegations as “the most flagrant infringement of the rights that are conferred on an individual by Title VII’s retaliation provision”. Here is where the EEOC really sheds some light in its underlying concern: ” In addition your policy is so broad that a reasonable employee could conclude from reading it that she could face discipline or discharge for making inquiries to the EEOC about harassment if that harassment is being or has been investigated internally by your organization.”
So, what’s an employer to do? Before listing some possible employer precautions (some call them Best Practices) I would like to offer some observations. First, the concern articulated by the EEOC focuses on the right of employees to complain about, oppose or cooperate in investigations of discrimination allegations. The EEOC’s concern is that employees might conclude they cannot even go to the EEOC to file a charge or otherwise complain about, oppose or help someone else oppose discriminatory behavior. But what about those who discuss an investigation simply to gossip or to tip-off the accused? That would not seem to be protected Title VII activity, even under the EEOC’s analysis. Let’s come back to this point in a moment.
The EEOC opinion letter was one from one EEOC District Office. The EEOC is an enforcement agency. It does not have the authority to make law. It can take a position that a court can either accept or reject. A court’s finding is law. In addition, this position statement from one District Office merely reflects that District Office’s position and therefore is not necessarily the entire agency’s position. So why should we be concerned about this letter, then? Often when one District Office issues such a letter it becomes indicative of an emerging trend within the agency as a whole.
So again, “What’s an employer to do?” Perhaps the most important piece of advice is to review your investigation policies and procedures, consult with counsel and, re-write the confidentiality provisions so that they are more narrowly tailored to meet your concerns. For example, statements tipping off an accused, or that are made in an attempt to cover up or obstruct an investigation, or statements that are merely idle gossip would not seem to fall within the same category as those apparently contemplated in the EEOC’s opinion letter. Similarly, acknowledging that complaining about discriminatory behavior, filing charges with the EEOC or state EEO agency, or similar activity is a protected right and that other activities not protected by law are prohibited and subject to discipline may also withstand EEOC scrutiny. Bottom Line: Blanket exclusions of all discussions of such allegations during an investigation may run afoul of Title VII, whereas, more narrowly tailored confidentiality policies should fare better. As always, you should also make sure to respond quickly to any rumors or complaints and keep on top of morale and any changes occurring while an investigation is pending.
Well, that’s a wrap for this topic. Next week we will move on to the topic of retaliation. See you then!
Disclaimer: Contents of this post are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
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