EEOC Says Employers Cannot Demand Silence From Their Employees During A Harassment Investigation
By Kluger, Kaplan, Silverman, Katzen & Levine, P.L. August 29, 2012
By Michael T. Landen
Recently, the Buffalo office of the Equal Employment Opportunity Commission (EEOC) issued a letter concerning an employer’s instructions to an employee not to discuss a pending investigation. Excerpts of the letter can be found here.
The EEOC letter raises questions about an employer’s ability to silence employees during an internal investigation into harassment. Specifically, the letter states, “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.”
This violates EEOC guidelines, which provide that complaining to management, union officials, other employees and even the media, is a “protected opposition.”
The EEOC’s position raises an important issue for employers – balancing the need for silence from the complaining employee so the employer can conduct a proper investigation and obtain information from other employees and management without the taint of workplace gossip and rumor against the rights of the employee complaining of harassment and the employee’s concern about the threat of retaliation. Threats of discipline and discharge for discussing the matter appear to cross the line.
The takeaway: employers should conduct their investigations as quickly and efficiently as possible in order to minimize strain in the workplace. Delay in completing an investigation may lead to employees changing stories and may also single out the complaining employee. All of these things will minimize office productivity. Employers need to act quickly but cautiously in investigating claims of harassment.