Labor & Employment Law

Discrimination - Title VII protection from retaliation for cooperating with employer's internal sexual harassment investigation--Certiorari Granted

By Harvey Randall, Esq.

The United States Supreme Court has granted certiorari in a case presenting the question whether Title VII's anti-retaliation provision protects a worker from being dismissed because she cooperated with her employer's internal investigation of sexual harassment.

The action was brought by an employee who was terminated. Her employer undertook a sexual harassment investigation of its employee relations director. The employee alleged that she responded to an investigator's questions by stating that the employee relations director had sexually harassed her and other employees. She further alleged that the investigation concluded that the director had engaged in inappropriate and unprofessional behavior, though not to the extent of the employee's allegations.

The employee further alleged that during the investigation three co- employees said that the director had engaged in sexually inappropriate conduct, and that after the sexual harassment investigation, those three co-employees were immediately investigated on other grounds and all promptly discharged. The employee herself was terminated after having been accused of embezzlement and drug use, charges which she stated were ultimately found to be unfounded.

She brought suit under 704(a) of Title VII, 42 U.S.C.A. 2000e-3(a), which prohibits an employer from discriminating against any of its employees because the employee has opposed an unlawful discriminatory practice ("the opposition clause"), or because the employee has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing concerning an unlawful discriminatory practice ("the participation clause"). Upon appeal, the employee claimed that her actions during the internal investigation constituted both "opposition" and "participation."

The Court of Appeals held that the employee's actions did not constitute opposition. Her alleged actions consisted of cooperating with the investigation by appearing for questioning and, in response to questions, relating unfavorable information about the employee relations director. The employee did not claim to have instigated or initiated any complaint prior to her participation in the investigation, nor did she take any further action following the investigation and prior to her firing. This was not the kind of overt opposition that the Court of Appeals had previously held was required for protection under Title VII.

The Court of Appeals further held that the employee's participation in an internal investigation initiated by the employer in the absence of any pending Equal Employment Opportunity Commission (EEOC) charge was not a protected activity under the participation clause. Courts have generally held that the participation clause does not protect an employee's participation in an employer's internal, in-house investigation, conducted apart from a formal charge with the EEOC.

This is an important employment discrimination case to watch. I believe that the court below narrowly interpreted the opposition and participation clauses. Therefore, the decision is likely to be reversed.

Mitchell H. Rubinstein

Full post as published by New York Public Personnel Law on January 25, 2008 (boomark / email).