US Supreme Court expands retaliation liability for employers, again! 02-14-2009
- By Ann F. Kiernan, Esq.
On January 26, 2009, the U.S. Supreme Court unanimously ruled that employees who speak out about discrimination or harassment by answering questions during an employer's internal investigation are protected from retaliation.
In Crawford v. Metropolitan Government of Nashville, 555 U. S. (2009), a Tennessee school district investigated rumors of sexual harassment by a manager. When an HR officer asked Vicky Crawford, a 30-year employee, whether she had witnessed any inappropriate behavior by the manager, Ms. Crawford described several instances of sexually harassing behavior, including the manger answering her greeting, "What's up?" by grabbing his crotch and replying "You know what's up", and, on another occasion, grabbing her head and forcing it next to his crotch.
Two other employees also reported sexual harassment by the manager, but no action was taken against the manager. Instead, all three witnesses were fired; in Ms. Crawford's case, the school district claimed that she was an embezzler. Ms. Crawford sued, claiming the real reason for her termination was illegal retaliation against her for reporting the manager's behavior.
The school district argued that Ms. Crawford had no case, since she had not reported the discrimination on her own initiative, but merely answered questions from the investigator. It also claimed that the law's anti-retaliation provisions did not cover the employer's internal investigation because it was not conducted pursuant to a charge pending with the EEOC.
The Supreme Court disagreed, holding that an employee can oppose discrimination by responding to someone else's questions. "[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... when her boss asks a question," wrote Justice Souter in his opinion for the Court.
What this means to you: As always, be respectful when working with employees who file internal complaints or participate in internal investigations. HR and/or legal should review any and all changes made to the working conditions of any employee who has a pending complaint, charge or action against the company, especially a harassment or discrimination complaint, or who has been a witness in a recent investigation. Finally, all managers should be trained in understanding the law of discrimination and harassment, as well as how to prevent retaliation.
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Case decisions cited here may be reversed. Please
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