Do employers possess the fundamental right to communicate with current or former employees to inform them about (1) a current or former employee’s filing of a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC) and (2) the EEOC’s subsequent request for information about those current or former employees as potential witnesses in the case?
Not surprisingly, the EEOC presently maintains that the answer is “no,” and a federal district court in Connecticut recently refused to dismiss the EEOC’s claims of interference and retaliation in violation of the Americans with Disabilities Act (ADA) asserted against an employer based upon the employer’s communication with employee witnesses that the EEOC deemed relevant to its own investigation of the charge. (EEOC v. Day & Zimmermann NPS, Inc., D. Ct., 15-cv-01416, Bolden, V.)
During the administrative proceeding, the EEOC identified potential witnesses as part of its investigation of discrimination allegations in violation of the ADA, notified the defendant that it intended to interview those witnesses, but then accused the defendant of violating the ADA when counsel for the defendant communicated with those witnesses by letter.
Specifically, the EEOC’s complaint claims the defendant violated the ADA when it mailed a letter to 146 of the charging party’s fellow union members who worked for the defendant during the relevant time period and were named as potential witnesses in the EEOC’s investigation. The notification letter included the charging party’s name and details about his medical restrictions regarding his ability to work, which, according to the EEOC complaint, interfered with the charging party’s and the witnesses’ rights to communicate freely with the EEOC.
The notification letter was signed by in-house counsel for the defendant employer and alerted the individuals that the company had provided their contact information to the EEOC upon its demand. The notification letter also let them know they might be contacted by the EEOC regarding their employment with the company in order to evaluate the merits of the charging party’s discrimination allegations, and that it was their choice whether or not to speak with the EEOC investigator. The company’s letter further explained that it was committed to providing equal employment opportunities for all employees and that it prohibits retaliation against its employees, including those who choose to participate in any of EEOC’s investigations. Finally, the letter alerted the potential witnesses that, if they elected to speak with the EEOC investigator, they could request to have the company’s counsel present during that meeting.
Notably, the notification letter’s description of the charging party’s discrimination claim was essentially the same as the allegations that he made in the charge that he filed with the EEOC.
Incredibly, the EEOC’s pending lawsuit against the defendant alleges that the notification letter (a) amounted to unlawful retaliation against the charging party and (b) interfered with the rights of the charging party and the employee witnesses to communicate with the EEOC, to participate in an EEOC investigation, and to file a charge of discrimination with the EEOC.
The EEOC’s pending claims are confounding because there are no laws preventing an employer from disclosing information contained in a charge of discrimination filed with the EEOC during the EEOC’s investigation, particularly under the facts in this case. The EEOC’s claims also defy logic because employers must be able to disclose information to potential witnesses about any discrimination allegations in order to effectively defend against an administrative charge of discrimination and prepare effective position statements. Employers should be free to conduct their own investigations to uncover relevant facts. Obviously, this requires conferring with witnesses and disclosing basic information about the charge of discrimination. How can an employer and/or its counsel ever be expected to prepare a valid position statement in response to an administrative agency if it had to forego communications with potential witnesses and withhold information about the discrimination allegations filed with the administrative agency?
Because the district court’s decision merely denies a pre-answer motion to dismiss the complaint, we remain optimistic that the defendant will, upon the close of discovery, obtain an order and judgment dismissing the EEOC’s retaliation and interference claims as a matter of law (and prior to trial). We expect that the EEOC will not be able to establish that the defendant employer’s intent in communicating with current and former employees was to interfere with anyone’s rights under the ADA or that said communication qualifies as unlawful retaliation due to the filing of the initial discrimination charge.
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