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EEOC Shuts the Door On Employer Witness Tampering

The United States Equal Employment Opportunity Commission - the EEOC - is the federal agency charged with investigating and remedying employment discrimination and civil rights abuses in the fifty states and territories. Where it can, meaning, where the states actually have civil rights laws themselves, the EEOC also "cross-files" with local state anti-discrimination agencies. Such is the case in New Jersey, for example, where we have a Division on Civil Rights (DCR). When you file with the DCR, they cross-file with the EEOC in New Jersey and when you file with the EEOC, they cross-file with the DCR in New Jersey. One of the problems we've always had in our field is that of "witness tampering" by employers.

Unfortunately, it's a fairly anticipated and typical human reaction. When people feel that their rights, reputation or property are at stake, they tend to get selfish. Employers are no different. Whether they truly believe that the case against them is credible or not (meaning, whether they truly believe they've done wrong or not), they tend not to care and they certainly don't tend to admit their wrongdoing. Instead, they pull out all the stops in defending and will pretty much do anything to win. That usually includes "witness tampering," something that we as Americans typically associate with T.V. dramas about the mafia. Witness tampering is very real, however, and perhaps more frequent in employment discrimination cases, I think, than even in criminal matters, based upon my personal experience. It's also far more insidious. Employers don't always go right at an employee witness and say, "You better keep your mouth shut if you know what is good for you," or words to that effect. It does happen often enough, however, that it's sickening, but far more often, the type of witness tampering that we see is as follows.

A plaintiff, usually a former or current employee, brings a discrimination or harassment case. He or she knows that a few employees know "something" about the facts, either because they saw something, overheard something, or know about collateral information which tends to support the plaintiff's claim. At the same time, however, these employees are also very cognizant of the market, the current economic situation, and their own personal responsibilities to themselves, their spouses and their families and dependents, to stay employed.

The employer is usually subtle about letting these employees know where their interests lie (or should lie). They talk about the "hit" the company might take if the plaintiff prevails in his or her case, and how that might affect employability for others (obviously, the witness to whom they're speaking). They talk about the fact that the witness with whom they intend to tamper has a review coming up, an expected raise or promotion, etc.

Sometimes, there's not even an implied or direct threat, merely a "reward" for doing the wrong thing. That is a type of tampering, too. The employers often use fairly sophisticated mental approaches to turn these witnesses from doing the right thing to doing the wrong thing. They appeal to the witness' self-interest and duty to family. "What's this [plaintiff] to you anyway? Is he or she going to put food on your table and take care of your family?"

In essence, once a person has convinced themselves that their civic duty no longer lies in telling the truth despite their own self-interest or lack thereof, they're far more likely to manipulate themselves into doing the wrong thing because they're not going to "stick their neck out" for someone who is not directly dependent on them.

This is sad and ironic but it's human nature. As Americans, we always feel that our rights are very important in the abstract until it comes time to do the right thing to defend or respect them, and then Americans are far more likely to sacrifice their freedoms, vote for candidates who want to do that, erode jury trials, undermine the judicial process, intimidate and threaten judges, and otherwise simply weaken the very concept of liberty, freedom and rule of law, than be "annoyed" by having to do their civic duty. The EEOC and DCR, as well as private counsel, are keenly aware of this witness tampering problem. A recent letter was sent by the United States EEOC field office to a particular employer in a case. On August 3, 2012, the agency's Buffalo office warned a particular employer that its policy "prohibiting workers from discussing an ongoing internal investigation of harassment" was unlawful. This is yet another form of witness tampering. The company simply says to its employees that it's going to consider it an act of "insubordination" if any employee "voluntarily" gives information or cooperates with a lawsuit or an investigation. In New Jersey, that's specifically illegal under our state anti-discrimination law. The agency claimed that the policy was illegal under Title VII of the 1964 Civil Rights Act, which is the federal anti-discrimination statute which controls in all fifty states regardless of whether or not there are state laws.

Perhaps the most significant part of this letter was the fact that the EEOC considers this sort of witness tampering flagrant, and not a mere "triviality."

This was well done. If you're an employee plaintiff in an employment matter, or merely a potential witness, remember that your rights are only worth something if you're willing to do the right thing in defense of them. Defending someone else's rights is also defending your own and employers know this. Don't let your employer intimidate, coerce or manipulate you into doing the wrong thing. It's not worth your integrity or your honor - or that of our society - or being able to look at your family and know that you did the right thing.

If you're an employer who's done this, shame on you for directly attacking the very thing that makes America unique and special.

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