[author: SCOTT T. SILVERMAN]

The recent NLRB ruling on confidentiality of interviews, which we previously discussed here, may conflict with the EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (the "Enforcement Guidance").

The Enforcement Guidance establishes that "[w]hen harassment by a supervisor creates an unlawful hostile environment but does not result in a tangible employment action, the employer can raise an affirmative defense to liability or damages, which it must prove by a preponderance of the evidence." The defense consists of two necessary elements, one of which is that "the employer exercised reasonable care to prevent and correct promptly any harassment."

The first prong of the defense generally requires an employer to establish, disseminate and enforce an anti-harassment policy and complaint procedure. According to the Enforcement Guidance, the employer's policy should contain "assurance that the employer will protect the confidentiality of harassment complaints to the extent possible . . An employer cannot guarantee complete confidentiality, since it cannot conduct an effective investigation without revealing certain information to the alleged harasser and potential witnesses. However, information about the allegation of harassment should be shared only with those who need to know about it."

Several problems confront an employer attempting to comply with the NLRB and EEOC confidentiality standards. If an employer's policy must contain a broad assurance that  it will protect confidentiality of harassment complaints to the extent possible, does that include a requirement to tell witnesses and others involved to maintain secrecy? It would seem so, and this would appear to be in contradiction to the NLRB standard that a "blanket" rule of providing confidentiality directives violates employees' rights to engage in protected concerted activity.  The NLRB's Banner decision specifically states that a generalized concern to protect the integrity of an investigation does not justify an overall policy of secrecy.

Further, the EEOC states that information about harassment should only be shared with those who need to know about it.  This would also arguably require an employer to tell those involved not to share information with co-employees, as they would not have a specific need to know about the investigation.  Such a directive, however, may violate the NLRB's requirement that an employer have a specific legitimate business justification for confidentiality tied to the individual investigation. 

Overall, there is a clear tension between the NLRB rule of limited confidentiality and the EEOC guidance of maximum possible secrecy. How these potential conflicts are resolved will eventually be decided by courts or further guidance from the agencies.  In the interim, employers are encouraged to discuss these issues and their investigations with labor and employment counsel.