Last week, the Supreme Court agreed to hear a really interesting investigation case, making this one of the busiest dockets for employment cases in recent years. The case is called Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, and it raises this question: Is an employee who answers questions as a witness in an internal investigation of sexual harassment protected from retaliation? It amazed me to learn that the Sixth Circuit Court of Appeals said no. The court found that an employer can fire an employee because she participated in an internal investigation. (Click here for links to the briefs and other information about the case, from the excellent resource SCOTUSblog.)
Crawford was a long-term employee who was fired after she was questioned as a witness in an internal investigation of a sexual harassment complaint. After several employees voiced concerns about inappropriate behavior by Dr. Gene Hughes, the employee relations director for the Metro School District, the District investigated. The investigator contacted employees who worked with Hughes, including Crawford, and asked them to answer questions. Crawford told the investigator that Hughes had sexually harassed her and other employees by, among other things, grabbing his crotch, asking to see her breasts, and pulling her head to his crotch.
When the investigation was complete, Hughes was not disciplined. However, three employees who told the investigator that Hughes had acted inappropriately were fired, as was Crawford several months later. (All of these facts are based on Crawford's version of events. Because Metro won on summary judgment, the Court is obligated to view the facts in Crawford's favor.) Crawford filed an EEOC charge and a lawsuit accusing Metro of retaliation.
Crawford lost in federal district court and again at the Court of Appeals. Both courts found that Crawford couldn't prove illegal retaliation, even if she really was fired for being a witness in the investigation. The reason? Title VII prohibits retaliation only against employees who "oppose" discrimination or harassment, or who "participate" in an investigation, proceeding, or hearing regarding discrimination or harassment. Because Crawford didn't file the original harassment complaint, the courts found that she hadn't opposed sexual harassment. The courts also found that Crawford's statements during the internal investigation didn't count as "participation" because no EEOC charge or lawsuit had been filed at the time.
The federal courts of appeal have reached different conclusions on this last issue: Some have held that the "participation" clause doesn't apply unless there is a pending EEOC charge or lawsuit - in other words, unless the official machinery of Title VII is in play. Others have held otherwise, and have protected witnesses in internal investigations from retaliation.
I am, of course, interested to see how the Supreme Court will resolve this dispute, should it take the case. But to me, there's a more compelling issue at play, and it involves the Farragher/Ellerth affirmative defense to harassment claims. Under those cases, an employer can avoid liability or limit damages in certain harassment cases if it can show that it had an effective complaint policy in place, that it promptly investigated claims and took appropriate disciplinary action, and that the employee failed to use this complaint procedure. Arguably, an employer that fires employees for participating in such an investigation would utterly undermine the effectiveness of its complaint procedures by discouraging witnesses from coming forward - and would have to wave goodbye to that affirmative defense.
But wait - there's more. The Farragher/Ellerth cases essentially make filing an internal complaint of harassment a necessary first step in the process of bringing a lawsuit. An employee who doesn't use the employer's internal procedures to complain may never have her day in court. So arguably, an internal investigation has become part of the official machinery of Title VII, much like filing an EEOC charge or a lawsuit. Under this logic, participating in an internal investigation should be protected just as much as participating in an official investigation.
No matter what the Supreme Court decides, smart employers won't fire or discipline employees for participating in an internal investigation. What purpose would it serve? An employer that retaliates against witnesses ties its own hands: If employees fear for their jobs, they won't volunteer information and might not answer questions honestly. The employer then might not know what's actually going on in the workplace and won't have an opportunity to stop it. Even if witnesses can't sue for retaliation, the employee whose complaint started the investigation in the first place can still sue - and the employer's actions in intimidating witnesses could well be Exhibit 1 in a claim for big dollar damages.
If you need to conduct an internal investigation, pick up a copy of my book, The Essential Guide to Workplace Investigations, which includes all of the information, forms, and guidance you need to get to the bottom of workplace problems -- without ending up in court.