Feb 17, 2009

Supreme Court Issues Another Retaliation Decision

In the employment law field, the Roberts Supreme Court has been something of a surprise. Although commentators have pointed out that the Court is markedly pro-business, that doesn't hold true for cases involving workplace retaliation. The Court has agreed to hear a handful of these cases in the last few years, and has consistently ruled in favor of the employee.

The latest example is Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee. Vicky Crawford, an employee of the Metro School District, was interviewed during an investigation into allegations of sexual harassment by Gene Hughes, the District's employee relations director. In response to questions from a District human resources officer, Crawford described several incidents in which Hughes had acted inappropriately, including grabbing her head and pulling it toward his crotch. Two other witnesses also described inappropriate behavior by Hughes. When the investigation was complete, the District took no action against Hughes, but fired Crawford and the other two witnesses.

Crawford sued the District for illegal retaliation in violation of Title VII. The District Court and Court of Appeals both ruled against Crawford, finding that she wasn't protected from retaliation because she had not instigated or initiated the original complaint. The courts determined that the "opposition" clause of Title VII's anti-retaliation provision, which protects those who oppose illegal discrimination, extends only to those who make a complaint themselves, not those who participate in an internal investigation of a complaint. 

In a unanimous opinion, the Supreme Court rejected this reasoning as creating a "freakish rule" that would protect someone who reports harassment on her own initiative, but not someone who reports harassment in response to a question from her boss. The Court found that Crawford's statements to the investigator were sufficient to show that she was opposed to Hughes's behavior, and that she was therefore protected from retaliation.

As the Court pointed out, firing employees for participating in an internal investigation will result in fewer internal complaints and fewer witnesses coming forward. This means employers won't have an opportunity to resolve harassment and discrimination problems internally, but will instead have to deal with them in the courtroom. And, once employers get to that courtroom, they will have deprived themselves of an important defense: Employers that take reasonable steps to prevent and correct harassment -- including having an effective process for taking and investigating complaints -- can avoid liability for certain types of harassment. Clearly, this defense won't be available to an employer that fires employees for participating in its own investigation.

If you need help conducting an internal investigation, pick up a copy of my book, The Essential Guide to Workplace Investigations (Nolo).