And Now the EEOC?

We reported last week that the National Labor Relations Board struck down an employer’s policy asking employees not to discuss pending investigations. Now, the Equal Employment Opportunity Commission seems to be heading down the same road.

The EEOC’s Buffalo field office recently notified an employer that it “flagrantly” violated Title VII by adopting a policy allowing the employer to discipline employees who discussed ongoing investigations. The letter states:

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.  In this case, telling the [redacted] 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.  There does not have to be a separate adverse action.

Importantly, the EEOC contends the employer violated Title VII simply by having the policy, even though it didn’t discipline any employees or take other adverse action.

Proactive employers should review and amend their policies so they don’t unnecessarily restrict employees discussing internal investigations.

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