State cannot demand silence from victims in sexual harassment investigations, High Court rules

by Nikita Biryukov, New Jersey Monitor

The New Jersey Supreme Court on Monday struck down an administrative rule that called for investigators to seek silence from victims and witnesses in investigations into sexual harassment in the public sector, ruling that the provision unconstitutionally paralyzed speech.

The ruling is a victory for Viktoriya Usachenok, a Treasury employee who sued New Jersey and the department and asked the courts to overturn part of the settlement after she was ordered to remain silent about a sexual harassment complaint that she had filed against her supervisor.

“In short, the request is as simple as it is broad: not speak to anyone about any aspect of a harassment or discrimination investigation. This request encompasses much of the protected speech,” Chief Justice Stuart Rabner wrote in the unanimous decision.

When Usachenok filed his complaint in 2016, the settlement included a directive requiring witnesses and victims to remain silent or face disciplinary action. The state amended the regulation in 2020, making the directive a demand and removing the threat of disciplinary action, but the court found that even the relaxed requirement failed constitutional tests.

The provision was intended to restrict freedom of expression without real limits, the judges found. The request for silence extended indefinitely – apparently beyond the duration of any related investigation – and a single exception for “legitimate commercial” reasons was completely undefined in the text, the ruling said.

“This extends to all witnesses without exception,” Rabner wrote. “Taken literally, victims and witnesses are asked not to speak to their spouse or a lawyer. »

Victims might also believe the request would prevent them from contacting other government agencies, including law enforcement, about their complaint, the judges wrote.

The high court’s decision overturns a ruling by an appeals panel, which upheld the rule and said a request for silence would not infringe on speech protections because the request was not mandatory and should not be respected.

The Supreme Court focused its analysis on the power imbalances between those who file sexual harassment complaints and those who investigate them. Because the rule does not require victims to be informed that they will not be disciplined for ignoring the confidentiality request, these individuals’ fears of retaliation are reasonable, the court concluded.

“It is not necessary for victims to be informed that they are free to refuse to comply with the request,” Rabner wrote. “They are not told that they can consult a lawyer about this. Nor are they told that there will be no repercussions for exercising their protected right to free speech. »

State lawyers had argued that the rule’s unconstitutionality could be remedied by additional language requiring investigators to inform victims that they would not be subject to sanctions for violating confidentiality, but the court found that such changes “would extend beyond the limits of judicial surgery.”

Judge Rachel Wainer Apter did not participate in the decision.

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