State Employee Challenges Confidentiality Policy Silencing Victims of Sexual Harassment

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State Employee Challenges Confidentiality Policy Silencing Victims of Sexual Harassment

Francine Foner, Esq., Ty Hyderally, Esq.

November 7, 2018

A state employee who is suing the New Jersey Treasury Department for sexual harassment is seeking a declaratory judgment voiding the State’s “strict confidentiality directive” for employees involved in harassment investigations, including witnesses and victims.  In Vicktoriya Usachenok v. State of New Jersey Department of the Treasury, et al., Docket No. MER-L-001577-17,  Plaintiff Vicktoriya Usachenok (“Usachenok”) alleges in her moving papers that “State employees who are victims and witnesses are required to sign a confidentiality agreement concerning their participation in harassment investigations acknowledging, in relevant part, that:  …[a]ll persons who are interviewed or otherwise advised of a complaint are directed not to discuss any aspect of the investigation with others. Failure to comply with this confidentiality directive may result in disciplinary action, up to and including removal.”

Plaintiff argues that this strict confidentiality clause infringes upon public employees’ free speech rights under the First Amendment, as well as violates the anti-retaliation provisions of the New Jersey Law Against Discrimination (“LAD”), “by interfering with public employees’ right to engage in protected activity and denying them the right to disclose issues of harassment and retaliation to the public and the courts.”  The Plaintiff is seeking both preliminary and permanent injunctive relief preventing the State from requiring employees to sign such a confidentiality agreement.

Usachenok alleges that she was subject to sexual harassment by her supervisor, for which she filed an internal complaint.  As part of the investigation, Usachenok was warned if she discussed her complaints or the investigation with anyone, she could be terminated for breaching confidentiality, and was required to sign the strict confidentiality directive.  Usachenok further alleges that the investigation was a sham, and that it was clear to her that Defendants were supporting her supervisor, and “effectively joined him in furthering the harassment and hostile work environment.”

When Defendants presented Usachenok with a statement to sign which purportedly reflected her complaints, but with which she disagreed, Usachenok called her husband, who is an attorney, to ask him for legal advice regarding whether she should sign the statement. Based upon Usachenok’s call to her husband for legal advice, the Defendants accused Usachenok of violating the confidentiality directive and filed a complaint against her with the State’s Ethics Commission.

Plaintiff argues that “voices of sexual harassment and assault will continue to be chilled or totally silenced if state employees continue to be threatened with termination if they disclose any aspect of the harassment investigation.”  This argument is consistent with the public policy behind legislation that has been proposed across the country, including New Jersey, in the wake of the #MeToo Movement.  Currently pending in New Jersey is legislation which would bar certain confidentiality agreements for all discrimination cases.  Specifically, S-121, which passed the Senate on June 11, 2018, and must still pass the State Assembly, would preclude confidentiality provisions in settlement agreements for discrimination or retaliation claims, and make it illegal to take any retaliatory action against a person on the grounds that the person does not enter in to an agreement or contract that contains a provision deemed against public policy and unenforceable.  Those in favor of S-121, similar to Usachenok, contend that as a matter of public policy, victims of sexual harassment or discrimination should not be prevented from speaking out about their experiences.

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