State Cannot Prohibit Government Employee From Discussing Investigations of Harassment and Discrimination Complaints

The New Jersey Law Against Discrimination prohibits discrimination and harassment in the workplace.  The New Jersey Civil Service Commission published a regulation incorporating this requirement.  However, in the case of Savchenko v. State of New Jersey, the New Jersey Supreme Court found that a portion of this regulation which requested that parties and witnesses keep the investigation confidential had a chilling effect on free speech.  It therefore struck down that portion of the regulation.

 

Background

The Civil Service Commission understandably seeks to maintain the confidentiality of these investigations, as publication might discourage witnesses from assisting, and victims from coming forward.   The regulation therefore contained a provision which provided that:

All complaints and investigations shall be handled, to the extent possible, in a manner that will protect the privacy interests of those involved. To the extent practical and appropriate under the circumstances, confidentiality shall be maintained throughout the investigative process. In the course of an investigation, it may be necessary to discuss the claims with the person(s) against whom the complaint was filed and other persons who may have relevant knowledge or who have a legitimate need to know about the matter.

However, the regulation contained a provision which required that:

All persons interviewed, including witnesses, shall be directed not to discuss any aspect of the investigation with others in light of the important privacy interests of all concerned. Failure to comply with this confidentiality directive may result in administrative and/or disciplinary action, up to and including termination of employment.

In 2016, Viktoriya Savchenko, an employee of the New Jersey Department of Treasury, filed an internal complaint alleging that her manager sexually harassed her.  She was interviewed.  Pursuant to the regulation, the investigators instructed her not to discuss the investigation with anyone. The investigators prepared her statement.  She requested changes, which the investigator declined to make.  She then called her husband, an attorney, who advised her not to sign.  The investigator then told her that she had violated the regulation and threated that she could be fired.  She later received a letter from an investigator confirming some of her allegations, but not all of them.

In 2017, she filed a lawsuit in the Law Division of the Superior Court of New Jersey against her employer, her boss, and the investigator who threatened her.  She requested that the Court declare the part of the regulation requiring confidentiality null and void.  Because it involved the validity of a State regulation, the question was removed to the Appellate Division of the Superior Court.

While the appeal was pending, the regulation was amended so that the confidentiality provision read:

In order to protect the integrity of the investigation, minimize the risk of retaliation against the individuals participating in the investigative process, and protect the important privacy interests of all concerned, the EEO/AA Officer/investigator shall request that all persons interviewed, including witnesses, not discuss any aspect of the investigation with others, unless there is a legitimate business reason to disclose such information.

The Term “legitimate business reason” was undefined.

 

The Appellate Division’s Decision

The Appellate Division rejected Savchenko’s request, and found that the regulation as amended did not violate her First Amendment rights, as it was a request rather than an order.  It found that while the request by an employer could be intimidating, it was not a prior restraint on free speech.  It therefore instructed the Law Division to dismiss her request.

Savchenko appealed to the New Jersey Supreme Court, which agreed to hear her appeal.

 

The Supreme Court Strikes Down the Confidentiality Provision

On May 6, 2024, a unanimous Supreme Court rejected the Appellate Division’s analysis and struck down the regulation’s confidentiality provision.

The State argued that because the amended regulation contained only a request, not a requirement, it did not prohibit free speech.  The Supreme Court rejected this argument.  It explained that the First Amendment to the New Jersey Constitution gives broader free protections than the United States Constitution.

The Court reviewed this section of the regulation and explained that:

The section has few, if any, limits. It directs state actors to ask victims and witnesses to give up their constitutionally protected right to free speech. It commands investigators to request complete confidentiality in every investigation. And it extends to all witnesses without exception. Taken at face value, victims and witnesses are asked not to speak with their spouse or an attorney. Likewise, they may reasonably understand that they are being asked not to contact other government agencies or law enforcement officials.

In short, the request is as simple as it is wide-ranging: not to speak with anyone about any aspect of any investigation into harassment or discrimination. That request encompasses a great deal of protected speech.

As described in the last sentence of paragraph (j), the request also has no time limit. It appears to extend indefinitely, even beyond the end of an investigation.

One exception appears in the text of the rule: victims and witnesses can disclose information if “there is a legitimate business reason to” do so. Ibid. The regulation does not define the phrase or offer guidance about what it means, and any reasonable person would find it difficult to understand the rule’s vague language.

What the regulation leaves out is also significant. It does not require that victims be told they are free to decline to follow the request. They are not told they can consult with an attorney about it. Nor are they told there will be no repercussions if they exercise their protected right to free speech.

Viewed as a whole, the unadorned language of the regulation extends quite broadly….

There is an inherent power imbalance here between the investigator who makes the request and the witness who hears it. Investigators speak on behalf of an agency of the State. Beyond that, victims and witnesses dependent on their employer can reasonably be concerned they may face consequences if they fail to comply…. As a result, many employees will undoubtedly give up their right to speak freely and will remain silent.

The Supreme Court therefore found that the regulation was unconstitutionally overbroad, and impermissibly chilled free speech on matters of public importance, workplace discrimination and harassment.

The justices acknowledged that the regulation sought to advance a valid end, ensuring that victims and witnesses felt safe to come forward and report discrimination and harassment.  However, the means the State chose to advance that legitimate interest – requesting confidentiality without explaining that the witness or victim were free to disregard the request – impermissibly interfered with free speech rights.

New Jersey state and local employees are therefore free to discuss their participation in investigations of workplace discrimination and harassment, should they choose to do so.

 

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