Employment Counseling and Litigation

Reconciling Title VII and the NLRA

Employers may defend Title VII claims by showing that they exercised reasonable care to prevent and correct the illegal behavior. According to the EEOC, “reasonable care” requires an employer to have a non-discrimination policy providing, among other things, an assurance the employer will “protect the confidentiality of Title VII complaints to the extent possible.”

At the same time, the National Labor Relations Act precludes employers from maintaining confidentiality requirements that restrict employees from discussing workplace investigations in others. The National Labor Relations Board recently found, for instance, that an HR consultant violated the Act by asking employees not to discuss ongoing investigations with coworkers.

How do employers reconcile these potentially conflicting directives?  Here are three suggestions.

First, written discrimination and harassment policies should state that management will protect the confidentiality.  Many advise that the policies should say the protection is “to the fullest extent possible,” which is consistent with the EEOC’s standard position.  I often prefer to say the protection is “to the extent practical in each case.”  In some cases managers may need to disclose some information in order to conduct a proper investigation; in other cases they may not.  In any case, however, the policies should not restrict employees from discussing workplace investigations.

Next, employers should make individualized assessments in each situation to determine whether the particular circumstances warrant instructing employees not to discuss the matter.  I expect those instances where the employer restricts discussions will be rare.

Lastly, employers can require supervisors to maintain the confidentiality of investigations, and to discuss details only with those who have a true need to know something. The National Labor Relations Act does not give supervisors the right to engage in protected concerted activity like rank-and-file employees so management can impose additional restrictions on supervisors.  This should be the norm.

Nothing is ever simple anymore.


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