If Silence is Golden, How About a Muzzle?

Shannon Green

Corporate Counsel

11-01-2012

The Equal Employment Opportunity Commission created a stir in August when one of its offices opined that a company must not prevent employees involved in an ongoing internal investigation of harassment from discussing it. Reactions were swift and diverse. Some lawyers applauded the pronouncement; others suggested that it flew in the face of standard operating procedure, which says that confidentiality is essential to ensure the integrity of an investigation.

It all began when the EEOC's Buffalo field office sent a letter to a company whose name has been redacted. The company had a written policy that threatened to discipline or dismiss employees involved in an investigation of harassment if they spoke out. The agency said in its letter that an employee is free to complain to anyone about discrimination, citing Title VII of the Civil Rights Act (which prohibits workplace harassment and discrimination on the basis of race, sex, and religious belief).

Days later, Lorene Schaefer, a mediator and arbitrator with One Mediation, reproduced portions of the letter on her blog (WinWinHR.com). "An employer who tries to stop an employee from talking with others about alleged discrimination is violating Title VII rights," Schaefer quoted, "and the violation is 'flagrant,' not trivial." According to the letter, the employer's prohibition was itself a Title VII violation.

Asked for comment, Christine Nazer, acting director of communications for the EEOC's main office in Washington, D.C., said in an email that Title VII confidentiality provisions prevented the agency from discussing the matter.

Schaefer knows something about this topic. A former general counsel of General Electric Company's transportation division, Schaefer also brought a class action lawsuit against GE alleging widespread discrimination. The 2007 suit claimed that more than 1,000 female lawyers and executives had been subjected to "systematic, companywide discriminatory treatment," including lower pay and fewer promotions than male counterparts. She reached a confidential settlement with GE in 2009.

In her blog post, Schaefer pointed out that the letter "is not law, and the analysis may be limited to the Buffalo office and perhaps even to this specific charge." She added: "My understanding is that other offices of the EEOC may be taking similar positions."

Some lawyers would like to see other regions fall in line with Buffalo. Matthew Billips of Billips & Benjamin in Atlanta says that prohibiting discussions isolates employees. In his more than 20 years of representing workers, Billips has found that harassment often comes to light as a result of employee communication. "One employee talks to another," he says, and "they find out that they're not the only one who has been treated this way by the same manager." While employers have a legitimate interest in preventing interference with an investigation, "what they were doing here seems to go well beyond that," he adds.

Other lawyers are skeptical that the letter will prove influential. Jay Sabin, general counsel of Grocery Haulers Inc. in Avenel, New Jersey, says he's not convinced that the EEOC matter "has legs." When an employer is investigating a complaint, "the standard protocol is to ask an employee not to discuss it."

There are lots of legitimate reasons for that. If companies can't ensure confidentiality, individuals may be reluctant to come forward with a complaint in the first place, says Sabin. Confidential investigations minimize the potential for workplace gossip, he says, which "may buttress that reluctance."

Employers conducting an internal investigation also have to worry about maintaining the integrity of their review. "Discussions among coworkers could taint the objectivity of the investigation," says Sabin, "leading employees to modify or even recant statements."Sabin notes: "In my experience, the most important thing to do is conduct an investigation and document it." If the EEOC files a lawsuit on behalf of an employee, Sabin says, jurors will be looking for evidence that the employer thoroughly reviewed the worker's claim. "They'll ask themselves, 'Did the employer act how I would have acted in that situation?' "

Schaefer agrees that crafting policies for handling internal investigations is a balancing act. "You want to protect the integrity of the investigation," she said in an interview. It's fair to inform witnesses, including the complaining party, that you take your duty to investigate seriously.

The EEOC may be moving in the direction of the National Labor Relations Board, which recently struck down similar prohibitions in its Banner Estrella Medical Center decision. The NLRB ruled that a blanket policy prohibiting an employee from discussing an ongoing investigation violated the National Labor Relations Act. A showing must be made that the employer's legitimate business interest outweighs employees' section 7 rights, the board added.

Schaefer suggests that it's still okay for employers conducting internal investigations to ask witnesses not to discuss the specifics of any interviews. What employers can't do is prohibit all discussion of the matter.

"It cannot be a complete gag order," she says.