EEOC & NLRB: Differences Over Confidentiality in Workplace Sexual Harassment Investigations

The Equal Employment Opportunity Commission (EEOC) recently issued a report addressing how employers should respond to sexual harassment complaints in the workplace – a report which has raised questions about the confidentiality of these internal investigations.

The EEOC recommends that employers protect the confidentiality of internal sexual harassment investigations as much as possible; however, the EEOC’s recommendation may not coincide with the National Labor Relations Board (NLRB) 2012 ruling, which prohibits employers from barring employees from discussing misconduct investigations.

According to the EEOC’s sexual harassment page, “It is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include ‘sexual harassment’ or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.

Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general. Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.”

According to the EEOC, sexual harassment investigations are supposed to be kept quiet, which raises concerns for employees who may find this rule counterproductive. For example, by talking to fellow employees about one’s sexual harassment investigation, other employees may gain the courage to come forward about their victimization, which helps raise awareness in the workplace and bring justice to the accused.

Conflict in Employee Confidentiality

For now, the EEOC and NLRB’s positions on confidentiality in sexual harassment investigations are inconsistent, even conflicting. The EEOC and NLRB are aware of their respective differing positions on the matter and are working towards reconciliation.

What is at issue:

  • Confidentiality can protect the employee from retaliation.
  • Confidentiality guards the integrity of the investigation.
  • Confidentiality protects the reputation of the accused.
  • Letting alleged victims share concerns with coworkers can be important in workplaces with widespread sexual harassment or where the accused has multiple victims.

Presently, the differences between the EEOC’s positon and that of the NLRB over the confidentiality of sexual harassment investigations creates a dilemma for employees and employers alike. Employees are not certain if their reports will be kept confidential and they don’t know if there are fellow employees with similar complaints.