Discrimination cases get the big headlines. Often they include juicy tidbits involving sexual harassment or extremely boorish behavior by a Cro-Magnon boss. It’s true that employment law cases involving discriminatory actions can be costly, time consuming, demoralizing, and embarrassing to an organization. But don’t forget about the retaliation minefield. The number of retaliation claims are growing and they’re often included with discrimination claims.
The January 26, 2009 U.S. Supreme Court decision in Crawford v. Metropolitan Government of Nashville has made things a little more interesting. Well, maybe not “interesting” but certainly more complicated and potentially risky for employers. The Court “clarified” and expanded the scope of Title VII retaliation protections. The Court held that an employee, who answers questions and conveys information about discriminatory conduct during an internal investigation, is engaging in “protected activity” under Title VII. Surprisingly, to me at least, some lower courts had found that such involvement would not constitute “active” opposition under Title VII.
The case involved allegations of sexual harassment by another employee. During an investigatory interview the plaintiff, a 30 year employee, was asked if she had witnessed an employee’s “inappropriate behavior.” She responded that she, herself, had also been subject to harassment. (She had not complained about the conduct.) No action was taken against the purported harasser, but the plaintiff was fired, allegedly for embezzlement. She sued, claiming illegal retaliation under Title VII.
The Supreme Court, siding with the employee, basically said that it would be goofy (my word, not theirs) to “protect 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.” This case will likely serve to further increase the number of retaliation cases.
What Should You Do Now?
This case is a good warning that employers must be more careful to avoid even the appearance of retaliation against an employee involved in a discrimination case. Additionally, make sure that your policies include appropriate retaliation prohibitions, your managers understand what constitutes retaliation (provide examples), that employment actions involving employees engaged in “protected activities” are properly reviewed (hopefully before they’re undertaken) and that you continue to employ sound corrective action procedures…..document, document and document some more. Further, continue to investigate discrimination claims promptly and thoroughly. Employers should not avoid investigating complaints because they fear possible retaliation claims from an employee who is later disciplined. Failure to properly investigate could cost an employer a solid defense to a discrimination claim.
Given the rising number of retaliation claims and the fact that they are now regularly included with discrimination complaints it is more important than ever to take steps to avoid them. Otherwise you may end up winning a discrimination case but losing on the retaliation claims.
