Is Your Harassment Investigation...Harassing?
October 1, 2012

When conducting an internal investigation of a harassment complaint, employers typically instruct interviewees that they must keep the information discussed during the interview confidential so the employer can carry out a fair and accurate investigation.

This warning typically is given to every employee who is interviewed or provides a written statement, whether the employee is the alleged victim, alleged harasser, or a witness. Most employers also include a similar confidentiality requirement in their harassment policy and complaint procedure.

To most businesses, this may sound like a "best practice". Surprisingly, both the U.S. Equal Employment Commission ("EEOC") and the National Labor Relations Board ("NLRB") have stated that such policies and procedures violate Title VII of the Civil Rights Act ("Title VII") and the National Labor Relations Act ("NLRA").

What the EEOC Says

An EEOC area office in Buffalo, New York recently issued a warning letter to an employer stating that its policy prohibiting employees from discussing ongoing internal harassment investigations was unlawful. The employer had a written policy warning employees participating in an internal harassment investigation that they could be subject to discipline or discharge for discussing the matter in the workplace. Although the threat of discharge may have been a bit extreme, the EEOC did not limit its determination to confidentiality requirements with strong disciplinary consequences. Rather, the EEOC advised that any order not to discuss an internal investigation is an adverse job action under Title VII. The EEOC further stated:

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 "flagrant" not trivial. In this case, telling the [undisclosed number of] women who complained of harassment that they were not to tell others about the alleged harassment is enough to constitute a harm under Title VII. It does not have to be a separate, adverse action. In addition, the written policy is so broad that a reasonable employee could conclude from reading it that she could face discipline or charge [discharge] for making inquiries to the EEOC about harassment if that harassment is being or has been investigated internally by your organization.

When approached for comment or further clarification, the EEOC, somewhat ironically, stated that its own confidentiality provisions prevented the agency from further commenting on the matter.

What the NLRB Previously Said

Shortly before the EEOC issued its letter, the NLRB declared that an employer must have a specific, legitimate business justification for requiring union or non-union employees to maintain confidentiality during internal investigations of employee complaints. In Banner Estrella Medical Center, the NLRB held that a medical center's rule prohibiting employees from discussing ongoing internal misconduct investigations violated Section 7 of the NLRA, which protects an employee's right to engage in "concerted activities" for "mutual aid and protection". The NLRB primarily was concerned that such confidentiality requirements conflicted with an employee's right to talk to co-workers about wages, hours, and other terms and conditions of employment.

The NLRB stated that "[a] generalized concern with protecting the integrity" of an investigation did not rise to the level of a "legitimate business justification" for such a policy. Rather, the NLRB held that such a policy only would be necessary if it was for the purpose of: (1) protecting a witness; (2) stopping evidence from being destroyed; (3) averting fabricated testimony; or (4) preventing a cover-up. It is important to note that a NLRB determination is not binding on public sector employers; however, the Wisconsin Employment Relations Commission often considers NLRB decisions in its own analysis of similar issues.

How Can I Protect the Integrity of My Internal Investigation?

Employers justifiably have many concerns about their ability to restrict post-interview discussions. First, a lack of confidentiality could taint the witness pool. Second, lack of confidentiality could open the alleged victim to greater abuse from the alleged harasser. Third, a falsely accused harasser could wind up the subject of a workplace smear campaign. Fourth, the subject matter of an interview may bring up issues that always must remain confidential, such as corporate trade secrets, or pupil records if the investigation takes place in a school setting.

Moreover, a lack of any confidentiality requirements also could inhibit a witness or alleged victim from freely discussing a discrimination complaint with their employers. An alleged victim may be afraid to complain or involve potential witnesses if there are no guarantees that their complaint will not somehow recirculate to the alleged harasser. Similarly, potential witnesses may be reluctant to cooperate with an investigation, fearing retaliation from the alleged harasser. Unfortunately, the EEOC and the NLRB have failed to consider these issues.

Many employers appear to impose a blanket confidentiality requirement on interviewees in internal investigations. The EEOC's letter provides very little guidance as to how an employer can protect the integrity of its internal investigation. In lieu of any EEOC guidance, an employer should consider the four justifications provided by the NLRB when deciding how to address confidentiality requirements. As such, an employer should ask itself the following four questions:

1. Does the alleged victim or witness need to be protected?
2. Will confidentiality help keep evidence from being destroyed?
3. Will confidentiality keep witnesses from comparing and fabricating testimony?
4. Will confidentiality help prevent a cover-up?

There are good reasons for requiring confidentiality, however a blanket requirement may interfere with protected conduct. The EEOC and the NLRB are concerned that employees will feel they cannot report harassment or retaliation if they are prohibited from talking about the subject of an internal investigation. For example, if a witness has been retaliated against or harassed after taking part in an investigation, he or she might think that the blanket confidentiality rule prohibits them from reporting the harassment to a supervisor because it is related to the complaint already under investigation. Consequently, any confidentiality requirement has to be narrowly tailored to avoid this effect and fit the circumstances presented. The extent to which an employer can require confidentiality will vary with the type of case, the subject matter of the investigation, and the position of the interviewee.

Each workplace is unique, and businesses should individually tailor their policies accordingly. However, all internal investigation policies should address certain issues. Employers should ensure that their policies provide for a case-by-case evaluation of the level of confidentiality required. When addressing confidentiality with a witness or complaining employee, an employer should take the following steps:

Clearly state that you are merely requesting that the employee refrain from discussing this matter until the investigation is completed.
Clearly state that the restriction is temporary until the investigation has been completed.
Emphasize that this is necessary to guarantee a fair and accurate investigation.
Emphasize that this is necessary to protect the alleged victim and witnesses.
Explain that the employer cannot protect the alleged victim and witnesses or guarantee that it is receiving accurate information if gossip circulates about the circumstances surrounding the complaint.
Encourage the employee to report any additional information or other complaints to their supervisor, manager, or human resources.
Explain that the restriction only applies to the immediate circumstances and not to any other workplace concern or issue.
However, remind the employee of any other confidentiality concerns that must be up held. For example, an employee is not free to violate any nondisclosure obligations related to "confidential information" or trade secrets that may be at issue in the investigation. Similarly, school employees will remain bound by the confidentiality requirements of Wisconsin's Pupil Records Law and the Family Educational Rights Privacy Act.

We encourage you to incorporate these changes into your written policies and procedures regarding internal investigations and harassment complaints. Of course, DO NOT include blanket policy language stating that an employee will be subject to discipline, discharge, or any other job action, if he or she fails to maintain confidentiality. Instead, you only should include this instruction if you have a legitimate business justification for doing so and if you remind the employee that he or she should report any subsequent harassment or retaliation.

If you have any questions regarding this article, please contact your Davis & Kuelthau attorney.

 

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