An employee who has been the victim of harassment/discrimination at their job may have a number of reasons to be concerned about the confidentiality of their claim. The employee may not want to reveal the details of the incident until they’re sure they have a legal claim. Or, as is often the case when an employee has been sexually harassed at work, they may feel the incident reveals personally embarrassing or private details they simply don’t want public. The employee also may be concerned about facing retaliation at work if the details of their claim become public. In this posting, I’ll discuss some the common phases of an employment discrimination claim and the extent to which an employee can expect the details of their claim to be kept confidential.

Talking With an Attorney About Your Job Discrimination Claim

One of the first steps you should take, if you believe you have been the victim of discrimination at work, is contacting an attorney. Eisenberg & Baum has a group of employment discrimination attorneys with years of experience handling discrimination claims in New York and around the country. We can help advise you of your rights and options based on the facts of your claim.

When you use a law firm like Eisenberg & Baum, you should know that your communications with your attorney about your claim are considered confidential. The law encourages open discussions between clients and their attorneys by protecting their communications from disclosure under the attorney-client privilege. The privilege applies to your communications with your attorney and their representatives, so if you speak with other law firm employees about your case, those discussions can be protected too. Most importantly, the privilege belongs to you the client, which means no one — not even your attorney — can disclose the details of your communications with them unless you specifically waive the privilege.

Filing an Administrative Claim Regarding Workplace Discrimination

One of the options you have as a victim of workplace discrimination is filing an administrative claim either with the federal Equal Employment Opportunity Commission or, where applicable, with a state or local agency like the New York State Division of Human Rights. When you initially contact the EEOC to provide them information about your claim, the information you offer is considered confidential. But, once the EEOC determines it is the correct agency to handle your claim and you choose to go forward with the charge against your employer, the EEOC will notify your employer about the charge and will provide your employer your name and details about your claim. While your employer will be aware of the details of your claim, the EEOC will not disclose to the public any information it collects during its investigation of your claim.

Filing a Discrimination or Harassment Lawsuit

As a discrimination victim, you also have the option of taking your employer to court to address their discriminatory actions and recover damages. Once you enter the court system, there is a strong presumption in favor of making the details of your case available to the public. The court proceedings and documents from your case will generally be available to the public, even though you might consider the details of your discrimination claim to be private.

In New York, the law does protect some court records from disclosure, but records from employment discrimination cases, including sexual harassment cases, are not among those explicitly protected. In rare instances, courts may seal all or portions of the records from a case if a party is able to show good cause for doing so. However, New York courts will typically balance the party’s interest in keeping the material confidential against the public’s interest in having access to that material. In terms of a discrimination case, it’s possible the court can find a significant public interest in knowing the details of your employer’s discriminatory practices that may outweigh your interest in privacy. If you’re concerned about the details of your claim becoming public in a court case, you should speak with your attorney about your options. Be aware, however, that court proceedings and records typically will be available to the public.

Settling an Employment Discrimination Claim Out of Court

Administrative agencies as well as the courts often encourage parties to try to resolve their claims through direct settlement negotiations or mediation. Many cases wind up being settled between the parties before a final finding or judgment is issued. The terms of a settlement agreement are like almost any contract: they’re enforceable so long as both parties agree to them. In the case of a discrimination claim settlement, one or both parties may have an interest in keeping the terms of their settlement confidential. If both parties agree, the terms of the settlement agreement can be made confidential, prohibiting both the employee and the employer from disclosing to third parties the details of what they’ve agreed to.

Can My Employer Use My Claim Against Me?

No matter what forum you use to pursue your discrimination claim, your employer will be made aware of your claim. You may be concerned that once your employer knows of your claim and other information is publicly available, you could face retaliation at work. Thankfully, you are protected from retaliation for reporting discrimination just as you are protected from the discrimination itself. Federal law as well as some state laws, like New York’s Human Rights Law, prohibit employers from retaliating against their employees for reporting discrimination. This protection is put in place so that you, as the employee, feel safe in reporting your employer’s conduct.

Know Your Rights

If you believe you have been the victim of discrimination or sexual harassment at your job, but are unsure who to tell or what to do, please contact Eisenberg & Baum. We can advise you of your rights, answer your privacy and confidentiality questions, and help you decide on the best way to pursue your claim against your employer. We’re based in New York City and have attorneys licensed in many states throughout the country; we can also become admitted pro hac vice with local counsel in other states where we are not currently admitted, so we can help no matter where you are. In discrimination and retaliation cases, we offer free initial consultations and bill on a contingent fee basis, so you won’t have to pay us unless we win your case.