Supreme Court Parses Protections for Internal Company Probes

By Staff Report

Oct. 9, 2008

Employees who participate in a company probe of discrimination may receive the same protections against retaliation as the person who formally filed the charge, if the Supreme Court rules in favor of a Tennessee woman at the heart of a case argued on Wednesday, October 8.

Vicky Crawford, who headed the payroll department of the school district of Nashville and Davidson County, testified in a July 2002 internal sexual harassment investigation of Gene Hughes, the district’s employee relations director.

Crawford was not pursuing her own case against Hughes, but she did tell an HR official conducting the review that Hughes had engaged in sexually derogatory behavior, including an incident in which he tried to force her head into his crotch.

Hughes was reprimanded but not dismissed. Crawford was later fired after the district said it found problems with payroll operations.

A district court dismissed Crawford’s case, holding that federal discrimination laws didn’t apply to her for being a witness in the harassment probe. The 6th Circuit Court of Appeals in Cincinnati affirmed the decision.

During the Supreme Court oral argument, the justices generally seemed sympathetic toward extending the Title VII anti-discrimination prohibitions against retaliation to cover employees interviewed by companies responding to internal complaints.

But they did explore how far the court should go in defining whether an employee has “opposed” discrimination. Too permissive a standard “just leaves the employer open to a lot of jury determinations the he shouldn’t be subjected to,” said Justice Antonin Scalia.

Under Title VII, a worker is protected if he or she objects to a discriminatory employment practice (the opposition clause) or pursues a charge (the participation clause).

Chief Justice John Roberts Jr. noted that a worker could oppose discrimination without contributing to an investigation and vice versa.

“This is a statute written deliberately with overlapping provisions to ensure that nothing is missed,” said Eric Schnapper, Crawford’s lawyer.

Crawford’s position was endorsed by the Department of Justice.

In previous rulings, the Supreme Court has encouraged employers to establish an affirmative defense against discrimination charges by setting up complaint response procedures.

Lisa Blatt, assistant to the solicitor general, said that the federal discrimination law is undermined if employers are given incentives to investigate and then are allowed to retaliate against people they question.

“Witnesses are going to be afraid to fully cooperate if they’re not given protection,” Blatt said.

But Francis Young, assistant attorney for the Metropolitan Government of Nashville and Davidson County, asserted that an employee must formally charge an employer in order to fall under the aegis of Title VII.

Otherwise, anyone who talks to company officials in an investigation can later claim retaliation if he or she is fired for an unrelated reason.

“The essence of the opposition clause is somehow putting the employer on notice,” Young said. “The best way to oppose sexual discrimination is to go and make a complaint about it.”

Crawford never reported Hughes’ behavior to her superiors before she testified in the internal probe, according to Young.

But she blamed her involvement in the investigation when she was subsequently fired for what Young called severe problems with payroll processing.

If Crawford wins, Young said that companies would circumscribe their responses to discrimination allegations.

“Employers would stop conducting these investigations if everyone they interview is a potential retaliation case,” Young said.

Justice David Souter wasn’t convinced by that argument, saying that internal procedures provide the best defense for a company.

“Any employer who doesn’t go through [an investigation] is crazy,” Souter said.

Schnapper emphasized the importance of giving people such as Crawford confidence that they can speak up about colleagues’ discriminatory behavior without losing their jobs.

“If sexual harassment is going to be stopped, it’s mostly going to happen in these internal processes,” he said.

—Mark Schoeff Jr.

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