Honesty Is the Best Policy . . . Until It Isn’t – Employer Denied Summary Judgment After Distributing Letter About Former Employee’s Charge of Disability DiscriminationHow much should you tell your employees about a pending charge of discrimination from a former employee? Should you let them know that the EEOC might contact them? Is complete honesty really the best policy? Maybe not, according to a federal district court in Connecticut that found an employer’s oversharing about a charge precluded summary judgment. In EEOC v. Day & Zimmerman NPS, Inc., the EEOC sued DZNPS for interference and retaliation under the ADA after the company distributed a letter to a group of employees disclosing various details about a former employee’s disability discrimination charge.

The Facts and the EEOC’s Lawsuit

In the fall of 2012, DZNPS hired approximately 150 temporary electricians, including Gregory Marsh, to work at a nuclear power station during a shutdown. After Marsh began training, he provided a doctor’s note stating that he could not work around radiation due to his lung disease and requested a reasonable accommodation. DZNPS terminated him.

In October 2012, Marsh filed an EEOC charge, alleging that DZNPS violated the ADA. About 15 months into the investigation, the EEOC requested a list of all electricians at the site during the fall of 2012, including their contact information. Before providing the requested information, in June 2014, DZNPS sent a letter to approximately 146 electricians, identifying Marsh by name, noting he filed an EEOC charge alleging disability discrimination, giving details of his request for accommodation, denying the allegations, and informing them that an EEOC investigator might contact them. The letter specifically stated:

It is your decision whether you wish to speak with the investigator and your decision will not have an adverse impact on your current or future employment with DZNPS. . . . DZNPS also prohibits any form of retaliation against an employee, including those who chose to participate in the EEOC investigation.

If you choose to speak with the EEOC investigator and would like to have a counsel for DZNPS present while you speak to the investigator, please let us know and we will make the necessary arrangements.

The EEOC was not happy about the letter and sued DZNPS under the ADA. The suit alleged that the company’s letter was retaliation against Marsh for filing an EEOC charge. It further alleged that the letter interfered with Marsh’s and the letter recipients’ exercise and enjoyment of rights as protected by the ADA. Despite Marsh’s original allegations, the EEOC did not assert that DZNPS failed to provide a reasonable accommodation, and Marsh apparently did not file his own lawsuit on that claim.

Both the EEOC and the company filed cross motions for summary judgment. The EEOC moved only on the interference claim, while DZNPS moved for judgment as to the entire complaint, arguing that the EEOC lacked standing to bring the claim, its letter was protected under the First Amendment and Connecticut’s litigation privilege, and the EEOC could not make out claims for retaliation or interference under the ADA. To the parties’ dismay, the district court denied both motions and stated that the EEOC’s claims would proceed to trial.

The District Court’s Opinion

The district court rejected DZNPS’s standing, First Amendment, and litigation privilege arguments, in part because DZNPS offered no authority to support them. There are plenty of employment statutes that limit an employer’s speech (e.g., Title VII, NLRA), so the court reasoned that if the letter was found to be retaliatory or interfering with ADA rights, the First Amendment would not prevent such a finding.

The Retaliation Claim. As threshold issues on the retaliation claim, the EEOC had to prove that the company’s letter was an “adverse employment action” against Marsh and that it was causally connected to his charge. Recall that by the time DZNPS sent the letter, Marsh had not been working for them for more than 18 months—so was the letter an adverse action? The district court found that there were disputes of fact, noting that “when an employer disseminates an employee’s administrative charge of discrimination to the employee’s colleagues, a reasonable factfinder could determine that such conduct constitutes an adverse employment action.”

Recall also that there were almost two years between Marsh filing his charge and the letter being distributed to employees, so DZNPS argued that they were not causally connected. On that issue, the court held that a reasonable jury could find a causal connection and that the period between the initial filing of the charge and the alleged adverse action was not the only relevant time frame. Although there was a 20-month gap between the charge and the letter, there was only a three-month gap between the EEOC’s request for information on other electricians and the letter. Furthermore, the letter specifically referred to Marsh’s charge and the EEOC’s investigation and “[was] clearly a response to those things.” Consequently, the court held that the EEOC survived summary judgment on causation.

DZNPS offered a legitimate, non-discriminatory reason for the action—it sent the letter to prevent business disruption and efficiently inform the recipients that DZNPS would be producing their contact information to the EEOC. The court found that a reasonable jury could conclude that the explanation was pretextual (i.e., a lie) and the real reason was a desire to interfere with ADA rights. For example, a jury could determine that the letter did not need (1) to mention Marsh or his claims, (2) to explain that recipients did not need to speak to the EEOC, and (3) to offer a company lawyer’s presence at any interview.

The Interference Claim. The ADA prohibits “interference” by providing that no one can “coerce, intimidate, threaten, or interfere” with someone’s rights under the statute. Noting the dearth of law on this issue, the district court stated that “the disclosure of personal information about an individual could well dissuade that individual from making or supporting a charge of discrimination under the ADA.” The court ultimately held that a reasonable jury could conclude that that the letter could interfere with or intimidate both Marsh and the other electricians with respect to communicating with the EEOC about possible disability discrimination. The company’s motive in sending the letter was deemed irrelevant.

Helpful Dos and Don’ts

So just how honest is too honest when faced with the decision to notify employees that you’ve given the EEOC their contact information? Employers should learn from this tale and err on the side of caution. If you decide to provide notice to employees who may be contacted by the EEOC:

DO let them know the EEOC may contact them.
DO let them know that if they have questions, they are free to contact HR.
DON’T name the employee(s) who filed or are involved in the EEOC charge.
DON’T provide details of the allegations.
DON’T provide advice about what employees should or should not do or say if contacted.
DON’T volunteer the services of your lawyers.

These guidelines are based on this one court’s ruling and, as a result, are probably overly cautious. It is unclear how the court would have ruled if the letter hadn’t provided the information about Marsh and his claims. However, this decision could make the EEOC a little more aggressive when it wants other employees’ contact information and feels that an employer isn’t being forthcoming. If you want to give your employees a heads-up, remember that less is more and only provide sensitive information to necessary employees on a limited, need-to-know basis.