State can’t request victims’ silence in sexual harassment probes, high court rules

The New Jersey Supreme Court on Monday struck down an administrative regulation that called for investigators to request silence from victims and witnesses in public-sector sexual harassment investigations, finding the provision unconstitutionally chilled speech.

The decision is a victory for Viktoriya Usachenok, a Treasury employee who sued New Jersey and the department and asked the courts to quash a portion of the regulation after being directed to keep silent about a sexual harassment complaint she lodged against her supervisor.

“In short, the request is as simple as it is wide-ranging: not to speak with anyone about any aspect of any investigation into harassment or discrimination. That request encompasses a great deal of protected speech,” Chief Justice Stuart Rabner wrote in the unanimous decision.

When Usachenok filed her complaint in 2016, the regulation included a directive for witnesses and victims to maintain their silence or else face discipline. The state amended the regulation in 2020, making the directive a request and removing the threat of disciplinary action, but the court found even the softened requirement fails constitutional tests.

The provision sought to curtail speech without real limits, the justices found. The request for silence extended indefinitely — apparently past the life of any related investigation — and a lone exception for “legitimate business” reasons was entirely undefined within the text, the ruling says.

“It extends to all witnesses without exception,” Rabner wrote. “Taken at face value, victims and witnesses are asked not to speak with their spouse or an attorney.”

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

The high court’s ruling reverses a decision reached by an appellate panel, which upheld the rule and said a request to stay silent would not infringe on speech protections because the request was not compulsory and did not have to be observed.

The Supreme Court turned its analysis on power imbalances between those who file sexual harassment complaints and those who investigate them. Because the rule does not require victims to be told they will face no penalty for ignoring the confidentiality request, such individuals’ fears of retaliation are reasonable, the court found.

“It does not require that victims be told they are free to decline to follow the request,” Rabner wrote. “They are not told they can consult with an attorney about it. Nor are they told there will be no repercussions if they exercise their protected right to free speech.”

Attorneys for the state had argued the rule’s unconstitutionality could be remedied by additional text requiring investigators to inform victims they would face no penalties for breaking confidentiality, but the court found such changes “would extend beyond the limits of judicial surgery.”

Justice Rachel Wainer Apter did not participate in the decision.