Momentous decisions regarding workplace investigations and protections for LGBT employees are likely coming from different departments and agencies of the federal government. Currently, the National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC) have opposing views on whether workplace investigations into sexual harassment can be confidential. And the U.S. Department of Justice (DOJ) and the EEOC have different positions on whether Title VII of the Civil Rights Act of 1964 protects LGBT employees. Those differences are unsustainable, but a resolution has yet to be found.
In June 2016, the EEOC issued a report from a task force on harassment in the workplace in which it strongly supported the position that harassment investigations should be as confidential as possible. The EEOC believes that confidential investigations will encourage victims to come forward, guard against retaliation, and protect witnesses as well as people accused of bad behavior.
The NLRB, on the other hand, held in its 2015 decision in Banner Health that prohibiting victims and witnesses from discussing an investigation impairs employees’ statutory rights to speak freely to each other about job-related issues. Under Banner Health, an investigation can be confidential only if the employer can show it has a “legitimate and substantial business justification” that outweighs workers’ rights to engage in concerted activity. That standard is very difficult to meet—and perhaps impossible prior to an investigation.
Neither position has gained broad support. Plaintiffs’ lawyers, who ordinarily align themselves with the EEOC, are among the most vocal critics of the agency’s position. They claim that confidentiality harms victims and the entire workforce by keeping everyone in the dark. Confidential investigations, they argue, keep the issue and the perpetrator in the shadows. By contrast, victims’ rights advocates and employers claim the NLRB’s position undermines the integrity of an investigation and exposes victims and witnesses to retaliation.
In response to those criticisms, the EEOC and the NLRB have begun talks in an attempt to reach a common position so they can provide clarity on the issue to employers and employees. While those talks proceed, the NLRB may end the conflict by rescinding or modifying its ruling in Banner Health. The Board has already moved to overturn a number of Obama-era decisions addressing workplace conduct, and General Counsel Peter Robb has indicated he wants to revisit the NLRB’s approach to the confidentiality question. By either route, the prospects for a common position—supporting confidentiality—is likely in the near term.
EEOC vs. DOJ
A larger and more intractable conflict over whether Title VII protections extend to the LGBT community exists between the EEOC and the DOJ. Under the Trump administration, the DOJ has forthrightly maintained that Title VII’s prohibition on discrimination based on sex does not include sexual orientation or gender identity. The EEOC, relying on its own regulations interpreting Title VII, insists that it does. The two agencies have even taken contrary positions in the same case before bewildered judges.
The anomaly of an executive agency taking a different legal position than the chief legal department of the executive branch is remarkable. It can occur only because the EEOC is an independent entity, with independent commissioners with singular views serving fixed terms. And the dichotomy will persist until one of the agencies changes its view or the U.S. Supreme Court settles the issue.
The legal status of LGBT workers—in other words, the reach of Title VII protections—is one of the most significant issues facing employers and employees. It hasn’t taken center stage yet, but the clash of cultures will soon be in the spotlight because cases are already in the pipeline. In fact, a case requiring the Supreme Court to rule on the substance of the EEOC’s regulations and its regulatory authority will not only define Title VII, but it may very well be the case that trims or reverses the Court’s Chevron ruling, which granted significant deference to regulatory agencies.
Burton J. Fishman is an attorney with Fortney & Scott, LLC, in Washington, D.C. You can reach him at firstname.lastname@example.org.