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Commission talks confidentiality requirements in internal workplace investigations

In the wake of increasing employer concerns about the extent to which they may require employees to keep internal workplace investigations confidential without running afoul of Title VII of the Civil Rights Act of 1964 and other antidiscrimination laws, CCH Employment Law Daily reached out to the EEOC to obtain some insight on the issue.

On July 30, the NLRB, in a split-panel ruling, held that a blanket prohibition on discussing human resources complaints during the pendency of an internal investigation violated the NLRA because it failed to minimize the impact on employees’ Section 7 rights (to protected concerted activity) (Banner Health System). Soon afterwards, Lorene Schaefer, commenting on One Mediation, discussed an EEOC pre-determination letter that purportedly condemned an employer’s efforts to keep an internal workplace investigation confidential as a “flagrant” violation of Title VII of the Civil Rights Act of 1964. Since then, several commentators have warned against employer policies that prohibit employees from discussing internal discrimination investigations with coworkers.

The letter discussed by Schaefer was not made available in complete form. Likewise, the details regarding the EEOC’s reason for contact with that particular employer were absent and, generally, such information is not publically available. The EEOC is unable to comment specifically about any matter under investigation, including the veracity of its purported statements in the press, whether a particular charge exists, or even the implications of an alleged administrative decision, noted Justine Lisser, EEOC Senior Attorney-Advisor and spokesperson. However, Lisser was able to provide some useful guidance regarding the lawful boundaries of employer’s efforts to keep confidential its internal investigations of discrimination.

Are employer policies that require strict confidentiality about internal investigations and impose disciplinary consequences for violations lawful? According to Lisser, even though employers may wish to impose confidentiality requirements on internal investigations of workplace discrimination complaints in order to protect the integrity of the process until the investigation is completed, “broad policies that impose discipline on those who do not abide by strict confidentiality requirements are likely to run afoul of the anti-retaliation provisions of Title VII and/or the other federal EEO statutes [the EEOC] enforce[s].”

These provisions prohibit retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding. “Because the anti-retaliation provisions of our EEO statutes establish that complaining to anyone (management, coworkers, the media) about employment discrimination is protected activity, an employer policy that disciplines people for discussing employment discrimination allegations that are part of a workplace investigation is likely to violate EEO laws, Lisser explained.

To what extent can employers ask employees to keep confidential internal discrimination investigations without running afoul of Title VII? “Although a policy that subjects employees who discuss matters raised in an internal discrimination investigation to discipline is likely to violate anti-retaliation provisions, an employer who merely suggests that those who are involved in internal investigations of discrimination keep the matters discussed confidential until the investigation is complete out of concern for the integrity of the process is less likely to be found to have violated EEO laws,” according to Lisser. This, of course, is only the case if the ‘suggestion’ is truly a suggestion — if those who do not abide by it are subjected to adverse treatment as a result, then this scenario looks more like the one discussed above in which a blanket policy requires strict confidentiality with the threat of discipline for violations.

What about the need to assure employees that their complaints will be kept confidential to the extent possible out of a desire to avoid the risk of retaliation or improper influence on statements of employees yet to be interviewed? “This question is about insuring those who may want to make use of the internal complaint process that the employer will not share their information with others unnecessarily,” Lisser observed. “EEOC’s Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors states that internal harassment policies and complaint procedures should offer assurances that the employer will protect the confidentiality of harassment complaints to the extent possible.” As Lisser pointed out, however, “complete confidentiality cannot be guaranteed, as an effective investigation may require revealing relevant information to a variety of individuals.”

The guidance discussed by Lisser provides that an anti-harassment policy and complaint procedure should at a minimum include the following components:

  • A clear explanation of prohibited conduct;
  • Assurance that employees who make complaints of harassment or provide information related to such complaints will be protected against retaliation;
  • A clearly described complaint process that provides accessible avenues of complaint;
  • Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible;
  • A complaint process that provides a prompt, thorough, and impartial investigation; and
  • Assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred.

Do the rules change when the EEOC is investigating a complaint of workplace discrimination? According to Lisser, the factors determining the lawfulness of confidentially requirements in workplace discrimination investigations are the same whether the investigation is internally initiated by the employer or launched externally by the EEOC.