Friday, January 18, 2008

Supreme Court to hear retaliation (Crawford v. Nashville) and ADEA disparate impact (Meacham v. Knolls Atomic Power) cases

The U.S. Supreme Court has granted cert. in two more employment cases to be heard this term.

Crawford v. Metropolitan Government of Nashville, which is out of the 6th Circuit, asks if Title VII's anti-retaliation provision protects an employee from being fired because she cooperated with her employer's internal sexual harassment investigation.

Vicki Crawford claimed that her termination after she participated in a sexual harassment investigation constituted retaliation. The 6th Circuit disagreed, holding that participation in a purely internal, in-house investigation, in the absence of any pending EEOC charge, is not a protected activity. The Court reasoned that a contrary result would chill employers' investigations because they would not interview witnesses for fear of potential retaliation liability. Crawford, not surprisingly, is arguing the converse, that such protection is needed so that employees' willing participation in such investigations is not chilled. The EEOC, along with the 3rd, 5th, 8th, and 11th Circuits, disagree with the 6th Circuit's holding.

On first blush, it seems that the employee has the better of the argument. Employees already perceive that they can be fired if the company doesn't like what they have to say. It's hard enough as is to get employees to voluntarily cooperate, and assurances of no retaliation are usually necessary to get them to open up at all. A ruling for the employer in this case would make internal investigations all that much harder to conduct. To quote from the cert. petition:

Workers of ordinary prudence would be likely to avoid cooperating with a sexual harassment internal investigation if they knew they could be fired for doing so, certain as most will be that such cooperation will anger the alleged harasser, who usually is a supervisor and who all too often is the witness's own supervisor. Employees would have a disincentive to cooperate, if their participation in internal investigations is not protected. Placing a voluntary witness into this kind of legal limbo would impede remedial mechanisms by denying interested parties' access to the unchilled testimony of witnesses. (internal quotations and citations omitted).

Meacham v. Knolls Atomic Power Laboratory asks whether an employee alleging disparate impact under the ADEA bears the burden of persuasion on the "reasonable factors other than age" defense. More on this case as we get closer to oral argument.

Latest Posts