A recent letter sent by a U.S. Equal Employment Opportunity Commission field office to an employer is giving some employment lawyers pause. On August 3, the agency’s Buffalo office warned the employer—whose name was redacted in the document—that its policy prohibiting workers from discussing an ongoing internal investigation of harassment was unlawful. The agency claimed that the policy was illegal under Title VII of the 1964 Civil Rights Act, which prohibits workplace harassment and discrimination on the basis of—including, but not limited to—race, sex, and religious belief. In a recent blog post about the matter, Lorene Schaefer, mediator and workplace investigator with One Mediation, reproduced portions of the letter, which stated the case thusly: “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.” According to excerpts from the letter, the employer’s prohibition was itself a Title VII violation:
In this case, telling [redacted] women who complained of harassment that they were not to tell others about the alleged harassment is enough to constitute 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.
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