No retaliation for cooperation: Supreme Court expands Title VII protection
February, 2009
Last week, the U.S. Supreme Court unanimously resolved an unsettled area of the law and declared that it is illegal to fire an employee in retaliation for their participation and cooperation in an internal investigation of discrimination and harassment allegations of another employee, despite the fact that the cooperating employee was not the one who initiated the complaint and was only asked to participate in the investigation.
In Crawford v. Metropolitan Government of Nashville and Davidson Cty., a woman (Crawford) had worked for the Nashville city government for more than 30 years. She earned high annual performance review evaluation ratings and was terminated after she was asked to cooperate in the sexual harassment investigation of another employee (Hughes) by answering questions about him from an investigator. Along with two other women, Crawford answered questions and all three reported incidents of Hughes' improper conduct where they were each subjected to sexual harassment from Hughes. Afterwards all three women were terminated for supposedly unrelated reasons while Hughes kept his job with no formal action taken against him.
Crawford sued for illegal retaliation under Title VII, but her suit was thrown out by the district court because she had not initiated a direct claim of sexual harassment. The district court reasoned that language covering those who "opposed" illegal workplace conduct did not cover employees who did not raise or initiate claims of harassment themselves.
The Supreme Court reversed the decision, citing Title VII and cases interpreting the law, saying the law actually encouraged employees to actively participate in workplace investigations in order to put a stop to workplace discrimination and harassment. The Court reasoned that if Title VII protections were not extended to employees who were participating in an investigation, then the law's effectiveness would be compromised. Therefore, a worker who has been asked to and who answers questions has indeed taken action "in opposition" to harassment and is protected from illegal retaliatory conduct and termination by Title VII. The Court warned against a "freakish" rule where an employee who reports discrimination or harassment would be protected from retaliation under Title VII but another employee who was asked questions about the same allegations by a supervisor would not be protected from retaliation under Title VII. The reasoning behind the Court's decision is that extending this protection encourages people to come forward to report unlawful discrimination and harassment.
Practical Tips for Employers
1. Take great care when investigating these types of claims with respect to the complaining employee; ensure that nothing that can be perceived as retaliation is directed to any witnesses who cooperate in an investigation by answering questions. (This ruling is especially important in light of the fact that there have been an increasing number of retaliation claims filed with the Equal Employment Opportunity Commission.)
2. Ensure your policies on harassment and discrimination prohibit retaliation and have a mechanism to report claims of retaliation.
3. Check back with the complainant and witnesses to ensure they aren't experiencing any further discrimination, harassment or retaliation.
4. Contact your local legal counsel to ensure your personnel policies or investigations comply with this latest decision from the Supreme Court and with all Title VII rules and regulations in general.