Confidential Workplace Investigations are Under Attack … by the EEOC?

Earlier this month, I took the National Labor Relations Board to task for its holding in Banner Estrella Medical Center that an employer’s request to employees not to discuss a workplace investigation with their coworkers while the investigation was ongoing violated the employees’ rights to engage in protected concerted activity. Lorene Schaefer, writing at One Mediation, brings us news that the Equal Employment Opportunity Commission has joined the fray and is also attacking the confidentiality of workplace investigations.

According to Schaefer, the EEOC’s Buffalo, New York, office has notified an employer of an investigation of its policy of warning employees not to discuss harassment investigations with co-workers:

You have admitted to having a written policy which warns all employees who participate in one of your internal investigations of harassment that they could be subject to discipline or discharge for discussing “the matter,” apparently with anyone.

EEOC guidance states that complaining to anyone, including high management, union officials, other employees, newspapers, etc. about discrimination is protected opposition. It also states that the most flagrant infringement of the rights that are conferred on an individual by Title VII’s retaliation provisions is the denial of the right to oppose discrimination. So, discussing one’s complaints of sexual harassment with others is protected opposition. 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.

I’m speechless. Confidentiality is a cornerstone of any thorough and meaningful internal investigation. As one of my readers astutely stated in a comment to my post about the NLRB’s attack on confidentiality:

Permitting folks to talk about the investigation impacts the investigator’s strategy, possible spoliation of evidence by witnesses who now know about the investigation when under normal circumstances we would have at best a pretty good chance of keeping the investigation confidential, interfering with work relationships the more and more people talk about the investigation, the more things become both diluted and exaggerated (remember the game of telephone?), it is so much more than just the word “Confidential.”

The EEOC is supposed to prevent workplace discrimination and harassment. How can it possibly take issue with a key component of the crucial tool employers use to weed out unlawful harassment? This position simply does not make any sense. The EEOC should be championing confidential investigations, not signaling that they constitute a “flagrant” violation of Title VII. Prohibiting employers from keeping workplace investigations confidential will render investigations meaningless. I do not think this is a result the EEOC wants to foster.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.