Now Start Disclosing Records Of Employer Misconduct

A federal appeals court panel this week approved publicly disclosing records of unsubstantiated misconduct complaints lodged against law enforcement authorities in New York City.

Now let’s extend that rule to employers.

The U.S. Equal Employment Opportunity Commission (EEOC) has long refused to disclose any details with respect to discrimination complaints filed against employers. The EEOC even hides from public view its decisions adjudicating those complaints. Many complaints in which the EEOC found probable cause the employer engaged in discrimination are quietly settled pursuant to mediation or conciliation agreements. No one is ever the wiser.

The EEOC’s secrecy rule permits discriminatory employers to avoid accountability for violating laws that ban discrimination based on age, race, sex, disability, religion, color, national origin, etc. Some nefarious corporations undoubtedly make it a cost of doing business to pay off discrimination victims.

If the public has a right to know when a police officer or firefighter is charged with misconduct, there is no justification for permitting employers who are charged with violating civil rights laws to hide behind confidentiality laws. At the other end of the spectrum, courts should stop the practice of sealing out-of-court discrimination settlements from public view.

Courts should stop sealing from the public view out-of-court settlements in discrimination cases.

Prospective job applicants have a right to make informed decisions about whether to take a job with a prospective employer that discriminates based on race or age. Members of the general public should be allowed to patronize only employers that treat their workers well.

Speculative?

The three-judge panel of the U.S. Court of Appeals for the Second Circuit in New York City rejected union efforts to maintain confidentiality with respect to misconduct allegations that are unsubstantiated, unfounded, not final or that resulted in an exoneration.

The panel called it “speculative” that disclosing allegations of misconduct will make it harder for law enforcement officers to find new jobs. The panel also said potential employers are unlikely to be misled by allegations that ultimately prove to be unfounded. Finally, the panel ejected concerns that disclosures will enhanced existing dangers and risks faced by law enforcement officers.

The unions pointed out that other city personnel records are private but the panel said: “Because the public has a stronger legitimate interest in the disciplinary records of law enforcement officers than in those of other public employees… there [is] a rational, nondiscriminatory basis for treating the two sets of records differently.”

Legitimate Interest

The panel’s reasoning also applies to employers charged with discrimination.

Job applicants and members of the public have a strong and legitimate interest in knowing whether an employer tolerates discrimination and there is no evidence they will be misled by unfounded discrimination complaints.

When federal civil rights laws were passed by Congress more than 50 years ago, Congress  felt confidentiality would encourage employers to voluntarily adhere to civil rights laws. But the reverse side of that coin has allowed bad employers to easily evade accountability and, for that reason, workers suffer.

Members of the Panel are Circuit Judges Amalya L. Kearse, Pierre N. Leval and Raymond J. Lohier, Jr.

Several organizations submitted briefs supporting the disclosure of unsubstantiated police records including the New York City Council Progressive Caucus, NAACP, Lawyers Committee for Civil Rights under Law, LatinoJustice PRLDEF, and Law for Black Lives.

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