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Supreme Court: Employees Who Cooperate In Internal Investigations Are Protected From Retaliation
(Published February 2, 2009)
On January 26, the U.S. Supreme Court unanimously ruled that Title VII's anti-retaliation provision protects employees who speak out about discrimination while cooperating with their employer's internal investigation.
The 6th Circuit Court of Appeals had dismissed an employee's retaliation claim because she had not reported the discrimination on her own initiative or filed a formal charge with the Equal Employment Opportunity Commission (EEOC). The Supreme Court disagreed with the 6th Circuit, holding that one can oppose discrimination by responding to someone else's questions. "Nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative, but not one who reports the same discrimination in the same words when asked a question," said the High Court.
Background: A Tennessee school district launched an investigation of rumors of sexual harassment by the employee relations manager. When an HR officer asked an employee whether she had witnessed "inappropriate behavior" on the part of the manager, the employee described several instances of sexually harassing behavior.
No action was taken against the manager, but the employee and two others who reported harassment during the investigation were fired soon after the investigation was completed. The reason given for the employee's termination was embezzlement. She claimed that the employer retaliated against her for reporting the manager's behavior.
The law: Title VII makes it unlawful for an employer to discriminate against an employee who: 1) has opposed an unlawful employment practice (known as the opposition clause), or 2) has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing (known as the participation clause).
Appeals court ruling: The 6th Circuit held that the opposition clause demanded "active, consistent" opposing activities, but the employee had not reported the discrimination on her own initiative. It also held that the participation clause did not cover the employer's internal investigation because it was not conducted pursuant to a Title VII charge pending with the EEOC.
SUPREME COURT SPEAKS
In determining that Title VII's anti-retaliation provision covers employees who answer questions during an internal investigation, the Supreme Court found that "oppose" is not defined by the law, so it went by the words ordinary dictionary meaning: resisting or contending against. A person can "oppose" by responding to someone else's questions just as surely as by provoking the discussion, said the Court.
The Court did not consider whether the employee was covered by the participation clause since it had found that the employee was covered by the opposition clause. (Crawford v. Metropolitan Government of Nashville and Davidson County, TN, U.S. Sup. Ct., No. 06-1595, 2009)
SUPREME COURT SCOFFS AT FEARS OF INCREASE IN RETALIATION CLAIMS
Although you may find it disconcerting that investigations into discrimination claims could be more open to charges of retaliation, the Supreme Court doesn't believe that employers will be less likely to conduct internal investigations, as the employer in this case had tried to argue. Reason: Employers have a "strong inducement to ferret out and put a stop to discriminatory activity"; that is, the potential to be held vicariously liable for harassment by a supervisor. To rule otherwise would undermine the intent of the law and give employees "a good reason to keep quiet about Title VII offenses."
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