Victim Cannot Be Silenced
The New Jersey Supreme Court has held that a regulation restricting a victim’s ability to speak out on an harassment claim is unconstitutionally overbroad
In this appeal, we consider the constitutionality of a regulation that applies to harassment and discrimination investigations in State workplaces.
Part of the regulation requires State investigators to “request” that anyone interviewed “not discuss any aspect of the investigation with others.” N.J.A.C. 4A:7-3.1(j).
The regulation’s request for confidentiality has a broad sweep. Investigators must ask all victims and witnesses who are interviewed not to speak to others — in other words, not to a spouse, an attorney, or the public. And the regulation has no time limit; the request extends indefinitely, even after an investigation has ended.
An exception in the regulation allows victims and witnesses to disclose information if “there is a legitimate business reason to” do so. Ibid. But the phrase is not defined, and a reasonable person would find it difficult to understand what the vague language means. In addition, investigators are not required to tell victims and witnesses that they are free to disregard the State’s request.
In this case, an employee of the Department of Treasury lodged an internal complaint that her manager sexually harassed her at work. Investigators interviewed her and, consistent with the version of the regulation then in effect, directed her not to discuss the investigation with anyone.
The Civil Service Commission (CSC) amended the regulation afterward. It now calls on investigators to “request,” not “direct,” that victims and witnesses remain silent about all aspects of the investigation. Ibid. Plaintiff’s complaint in this appeal seeks a declaratory judgment that the current regulation is unconstitutional.
The State Constitution guarantees an affirmative right to speak freely that is broader than the protections in the First Amendment. Compare N.J. Const. art. I, ¶ 6, with U.S. Const. amend. I. The guarantee extends to victims of harassment and discrimination who have a right to speak out about what happened to them.
Although the regulation seeks to advance legitimate interests — “to protect the integrity of the investigation, minimize the risk of retaliation . . . , and protect the important privacy interests of all concerned,” N.J.A.C. 4A:7-3.1(j), it reaches too far in trying to achieve those aims and chills constitutionally protected speech. We therefore hold that the rule is overbroad under the State Constitution. As a result, we reverse the judgment of the Appellate Division and strike the relevant part of the regulation.
The complaint
In May 2016, Usachenok filed an internal complaint with the Equal Employment Opportunity and Affirmative Action (EEO/AA) office in the Department of Treasury. She claimed her supervisor John Mayo sexually harassed her and subjected her to a hostile work environment.
Meeting with the investigator
Consistent with the text of N.J.A.C. 4A:7-3.1(j) (the “regulation” or “paragraph (j)”) at the time, Sanders directed Usachenok not to discuss the investigation with others and had her sign a form to acknowledge the confidentiality directive. Sanders also advised Usachenok that she could be disciplined if she violated the directive.
According to Usachenok, at a meeting in June 2016, Sanders asked her to sign a statement the investigators had prepared that summarized her allegations. After reading the statement, Usachenok said it needed to be changed “to accurately reflect her complaints.” When Sanders declined to make the changes, Usachenok asked if she could call her husband. Her husband, an attorney, advised her not to sign the document. According to Usachenok, Sanders then accused her of violating the confidentiality directive and threatened that she could be fired.
In late August 2016, Usachenok received a letter from another Treasury investigator that allegedly confirmed some but not all of her claims against Mayo.
Below
The Appellate Division also concluded that the amended regulation did not violate the public policies underlying the Law Against Discrimination (LAD). In doing so, the court stressed the important values behind a request for confidentiality: to “promote[] a fair investigatory process that protects both the accuser and the accused while respecting the free-speech rights of all.”
The Appellate Division ultimately remanded the case to the trial court and directed it to enter an order dismissing Usachenok’s challenge to the regulation.
(Mike Frisch)