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.

A spokesperson for the EEOC said Title VII confidentiality provisions prevented the agency from commenting on the matter. 

Schaefer, a former general counsel of General Electric Company’s transportation unit who has nearly 15 years of in-house legal experience, says that this move by the EEOC office suggests certain steps that employers may want to consider taking.

Crafting policies for handling internal investigations into claims of harassment and discrimination is a balancing act, she says: “You want to protect the integrity of the investigation.” It’s fair to inform witnesses, including the complaining party, that you “have a duty to investigate” and that you take that duty seriously.

Is the agency potentially moving in the direction of the National Labor Relations Board, which recently struck down similar prohibitions in its Banner Estralla Medical Center decision [PDF]. In that decision, the NLRB ruled that a blanket policy prohibiting an employee from discussing an ongoing investigation violated the National Labor Relations Act. The board said an individual showing must be made that the employer’s legitimate business interest outweighs employees’ Section 7 rights.

Employers can take some comfort in the fact that the letter from the field office isn’t yet EEOC law. Schaefer says it’s still okay for employers conducting internal investigations to ask witnesses not to discuss the specifics of any interviews that take place in that review. What employers can’t do is prohibit any form of discussion of the matter whatsoever.

“It cannot be a complete gag order,” says Schaefer.

Jay Sabin, general counsel of Grocery Haulers Inc. in Avenel, New Jersey, says he’s not sure if 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 a lot of legitimate reasons for that. An individual might be reluctant to come forward with a complaint in the first place, says Sabin. Ensuring that the investigation remains confidential minimizes 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?’ ”

Title VII