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Should Employees Be Protected From Retaliation For Participating In Employer Internal Investigations
October 09, 2008

The Supreme Court’s new term began this week and included an employment law case of interest to Indiana employees and Indiana employment lawyers. Oral argument was held in Crawford v. Metropolitan Government of Nashville, to determine whether the anti-retaliation provision of Title VII of the Civil Rights Act of 1964 (“Title VII”) protects an employee from being fired because she cooperated in her employer’s internal sexual harassment investigation.

Title VII’s anti-retaliation provision prohibits employers from (1) retaliating against employees who oppose unlawful practices (the “opposition clause”) and (2) participate in various types of Title VII proceedings (the “participation clause”).
Crawford was employed for over 30 years by the Metropolitan School District. She participated in an internal investigation into sexual harassment complaints made by some of her female co-workers against the school’s Employee Relations Director. During the investigation, Crawford reported that the Employee Relations Director had engaged in improper conduct including on numerous occasions asking to see her breasts and grabbing his genitals, and on one occasion, pulling her head down near his crotch. The school district took no action against the Employee Relations Director, but fired Crawford a few months after the investigation.
Crawford filed suit against the school district alleging that she had been wrongfully discharged because she provided information regarding the Employee Relations Director’s unlawful conduct. Crawford alleged that her participation in the internal investigation constituted protected conduct under Title VII. The trial court held that her conduct was not protected under Title VII’s retaliation provisions and dismissed her case.
On appeal, the Sixth Circuit agreed with the trial court and found that Crawford’s conduct was not protected under opposition clause or the participation clause. With regard to the opposition clause, the court held that Crawford’s act of relating information during the investigation did not qualify as “opposition” because she did not allege she made any complaint prior to her termination. With regard to the participation clause, the court held that the participation clause only applies to formal investigations by the Equal Employment Opportunity Commission (“EEOC”). Because no EEOC charge had been filed at the time of the investigation, the court found that Crawford’s participation in the investigation was not protected by Title VII.
Under this decision, employees who participate in internal investigations of harassment and/or discrimination have very little protection from retaliation by their employers. The U.S. Department of Justice has urged the Supreme Court to overturn the Sixth Circuit’s decision and find that the disclosure of discriminatory acts during an employer’s internal investigation constitutes protected activity. 
In Indiana and other states, employer investigations are the norm when employees allege discrimination or harassment. Employees who provide information about discriminatory conduct should be protected under the law.  The Supreme Court should reverse the Sixth Circuit’s decision in Crawford.


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