Letter to employees during EEOC investigation may violate discrimination laws

Suppose an employee files an EEOC charge of discrimination against you. And, further suppose that during the investigation, you receive a request from the agency for the name and contact information for all similarly situated employees. You correctly assume at the EEOC may use the information to contact your employees for investigatory interviews.

Do you—

1. Allow the EEOC process to proceed; or
2. Inform your employees of the nature of the charge, the EEOC investigation, that the EEOC may contact them, and that their participation would be 100 percent voluntary?

If you choose option “2”, you may have violated federal discrimination laws, at least according to a Connecticut federal judge.

In EEOC v. Day & Zimmerman (D. Conn. 8/22/17) [pdf], the defendant-employer was faced with this exact dilemma, and chose option 2. As a result, it is now facing a jury trial over the EEOC’s claims of retaliation and interference.

Here is the allegedly offending letter [pdf] the employer sent to its impacted employees:

The EEOC alleged that the letter retaliated against the charging party, and further interfered with its investigation by chilling the recipients from exercising their statutory rights to participate in the investigation. The employer argued that the letter was a “standard courtesy notice” to its employees, advising them that an EEOC investigator might contact them, and further provided answers to questions it had received over the years in similar situations (such as assurances of non-retaliation). The trial court disagreed with both, setting the stage for trial. 

 
Upon review, the letter is fairly innocuous. It gives an unbiased recitation of the charge, promises employees that the company would not retaliate against them for talking to the EEOC, and accurately advises that cooperation with the agency is voluntary. If I could pick one nit with the letter, it would be in the identification of the charging party. The employer could have omitted the first two sentences of the letter’s second paragraph, rewritten the remainder of that paragraph, and achieved the same goal. Otherwise, this letter is not substantially different that letters I have drafted for clients, and likely would draft again under the proper circumstances. I am now, however, rethinking this strategy. 

If you feel that you need to inform your employees of a pending EEOC investigation, consider doing so without outing the charging party, and understand that in the opinion of this federal judge, your words may open you to further liability.