A recent U.S. Supreme Court ruling has again widened the scope of when an employee can sue for whistleblower retaliation, and companies would do well to reconsider how they conduct investigations as a result of it.
The case, Crawford v. Metropolitan Government of Nashville, involved three women interviewed as part of an internal investigation of sexual harassment claims raised by another employee against a supervisor. The three women alleged that they, too, had been harassed, and were later fired for various claims of embezzlement and drug use. The lead plaintiff, Vicky Crawford, then filed suit under Title VII of the Civil Rights Act.
The question before the High Court was whether the retaliation protections offered under Title VII extend to an employee who speaks out about discrimination in the course of a company’s internal investigation, rather than coming forward on her own. In a decision handed down Jan. 26, the court ruled that the protections do.
Burns
The decision could have significant ramifications. Retaliation claims are the fastest-growing types of discrimination complaint employers face; they are also notoriously difficult for companies to win. Any decision expanding employee rights in this field can be troubling, says James Burns of the law firm Reed Smith, “because more people become … aware that they have that right.”
According to the Equal Employment Opportunity Commission, retaliation complaints soared 33 percent from 1997-2007. The total number of discrimination complaints overall, however, rose only 2.5 percent in that period.
A federal appeals court originally ruled against Crawford, reasoning that since she only answered questions as part of another investigation and did not bring a complaint herself, Crawford did not “oppose” the discrimination.
The Supreme Court, however, saw things differently. “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 court said in its 9-0 decision.
“Clearly the court is taking a very broad view on the types of conduct that are protected from retaliation, and wants to send a strong signal that employers need to make sure employees feel comfortable, and safe, and free from reprisals …”
— James Burns,
Partner,
Reed Smith
Burns says the Crawford decision tells employers “to be thoughtful about which witnesses you’re going to select as part of your investigation.” An employer may want to start the internal investigation with a smaller group than it normally would, for example, because if one of those interviewees is later terminated, disciplined, or denied a promotion or raise, he could claim retaliation was due to his participation in the investigation.
Avoiding the Trap
Heller
Not all companies appear to be phased by the ruling. Dave Heller, chief ethics and compliance officer of Qwest Communications, says the decision should not affect companies “with robust Codes of Conduct and anti-retaliation provisions in any significant way.”
A wise company, Heller says, “is not likely to split hairs when it comes to protection from retaliation, but will instead extend broad protections to individuals raising concerns.”
Burns agrees that companies with effective codes of conduct have fewer concerns. “The law in this case reflects what good, ethical, law-abiding employers were already doing, which is that if you want to conduct an effective investigation, you want to make sure that people feel free to speak out,” he says.
Kelly
“Having those policies is the first step, but the next step—made clear by Crawford—is how to appropriately conduct the investigation,” says Sarah Kelly, an employment discrimination lawyer with law firm Cozen O’Connor. “You need to conduct a thorough investigation, but the investigation needs to be limited by reason.”
In the Crawford case, for example, the employer chose to interview random employees who weren’t involved in any harassment problems the original complainant alleged. “Opening up the investigation to that broad of a scope is something an employer should be cautious of anyway, because of the risk of spreading rumors in the workplace that don’t need to be spread,” Kelly says.
Justices Clarence Thomas and Samuel Alito appeared to share those concerns. In concurrent opinions, they clarified that protections under Title VII’s opposition clause don’t extend to “silent opposition” or opposition that is “not active and purposive.”
EEOC STATS
The U.S. Equal Employment Opportunity Commission
Charge Statistics:
FY 1997, FY 2003 - FY 2007.
Category
FY 1997
FY 2003
FY 2004
FY 2005
FY 2006
FY 2007
Total Charges
80,680
81,293
79,432
75,428
75,768
82,792
Race
29,199, 36.2%
28,526, 35.1%
27,696, 34.9%
26,740, 35.5%
27,238, 35.9%
30,510, 37.0%
Sex
24,728, 30.7%
24,362, 30.0%
24,249, 30.5%
23,094, 30.6%
23,247, 30.7%
24,826, 30.1%
National Origin
6,712, 8.3%
8,450, 10.4%
8,361, 10.5%
8,035, 10.7%
8,327, 11.0%
9,396, 11.4%
Religion
1,709, 2.1%
2,532, 3.1%
2,466, 3.1%
2,340, 3.1%
2,541, 3.4%
2,880, 3.5%
Retaliation - All Statutes
18,198, 22.6%
22,690, 27.9%
22,740, 28.6%
22,278, 29.5%
22,555, 29.8%
26,663, 32.3%
Retaliation - Title VII Only
16,394, 20.3%
20,615, 25.4%
20,240, 25.5%
19,429, 25.8%
19,560, 25.8%
23,371, 28.3%
Age
15,785, 19.6%
19,124, 23.5%
17,837, 22.5%
16,585, 22.0%
16,548, 21.8%
19,103, 23.2%
Disability
18,108, 22.4%
15,377, 18.9%
15,376, 19.4%
14,893, 19.7%
15,575, 20.6%
17,734, 21.4%
Equal Pay Act
1,134, 1.4%
1,167, 1.4%
1,011, 1.3%
970, 1.3%
861, 1.1%
818, 1.0%
Equal Employment Opportunity Commission (1997, 2003-2007)
The high court also shot down the employer’s argument that if everyone interviewed during an internal investigation could sue for retaliation, then employers will stop conducting investigations out of a fear of new lawsuits being filed. “It’s still in an employer’s best interest to conduct such investigations, because only then can it protect itself from liability,” Burns says.
But, Burns warns, tread carefully when imposing a sanction against an employee who participated in an investigation, and make sure the decision can be easily defended, “because those are high-risk actions.”
Title VII Expanded
The Crawford case is only the latest in a string of recent decisions where the court has broadened retaliation protections under Title VII. In 2008, the court held in Gomez-Perez v. Potter that federal employees who complain of age discrimination have the right to bring a retaliation claim under the Age Discrimination in Employment Act, even though no explicit language in the statute permits such a claim.
That same day, the court also found in CBOCS West v. Humphries that Section 1981 of the Civil Rights Act includes claims for retaliation. In that case, an employee sued for racial bias after a former assistant manager of a Cracker Barrel restaurant fired him for complaining that another fellow black employee had been dismissed for race-based reasons.
And in a 2006 decision, Burlington Northern & Santa Fe Railway Co. v. White, the court ruled that a retaliation claim could be based on any “actions that would have been materially adverse to a reasonable employee or job applicant.”
Says Burns: “Clearly the court is taking a very broad view on the types of conduct that are protected from retaliation, and wants to send a strong signal that employers need to make sure employees feel comfortable, and safe, and free from reprisals coming forward and protected when they do so.”
Despite the theme of recent cases, the rulings are not always easy to predict, Kelly says. The justices “seem to be doing what they’re supposed to be doing, which is looking at the case and deciding the case on its specific facts … as opposed to following an ideology,” she says.
That said, the specific decision in Crawford is not entirely surprising, Kelly adds. Due to the “very egregious, obnoxious, sexually orientated conduct” alleged to have occurred, “most conservatively managed employers would have assumed that somebody in her position was protected, especially based on the nature of the information that she provided.”
No comments yet