Monday, January 26, 2009

Supreme Court rules that retaliation includes participating in internal investigations

In a unanimous 9-0 decision, the U.S. Supreme Court held today that Title VII’s anti-retaliation provision covers employees who answer questions during employers’ internal investigations. The case is Crawford v. Metropolitan Gov’t of Nashville.

The case involved the termination of a 30-year employee who answered her employer’s questions during its investigation into a co-worker’s allegations of harassment against a different employee.

The Court found Crawford’s activity to be protected by the anti-retaliation provision’s “opposition” clause:

[N]othing 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 her boss asks a question….

If it were clear law that an employee who reported discrimination in answering an employer’s questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses against themselves or against others…. The appeals court’s rule would thus create a real dilemma for any knowledgeable employee in a hostile work environment if the boss took steps to assure a defense under our cases. If the employee reported discrimination in response to the enquiries, the employer might well be free to penalize her for speaking up. But if she kept quiet about the discrimination and later filed a Title VII claim, the employer might well escape liability, arguing that it “exercised reasonable care to prevent and correct [any discrimination] promptly” but “the plaintiff employee unreasonably failed to take advantage of … preventive or corrective opportunities provided by the employer.” Nothing in the statute’s precedent supports this catch-22.

Wile the Court went to great lengths to ground its decision in the statutory definition of “opposition,” this opinion really is policy driven. The Court is sending a clear message that it highly values internal workplace investigations. The message to employers is two-fold:

  1. If an employee complains of discrimination or retaliation, investigate

    promptly and thoroughly; and

  2. The investigatory process should include clear assurances to third-party witnesses that they will not be retaliated against for participating in the investigation.