IS RETALIATION GETTING EASIER FOR EMPLOYERS TO CONCEAL?
There has been much disagreement among the Courts of this country about what actions, and under what circumstances, an employer’s personnel decisions constitute unlawful retaliation. Although many employment laws have anti-retaliation provisions, Section 704(a) of Title VII is the non-retaliation provision that has been most frequently invoked. 42 USC 2000e-3(a). Title VII’s prohibition of retaliation makes it unlawful for an employer to take an adverse job action against an applicant or employee because she or he has opposed discriminatory conduct or lodged a claim, filed a charge, testified, assisted or participated in an investigation, proceeding or hearing. The Court of Appeals for the Sixth Circuit (which includes Ohio) has set out the types of activities which it considers to be protected conduct in opposition to unlawful discrimination under Title VII. The Court’s list includes: complaining to anyone about alleged discrimination (including management, unions, other employees, or newspapers); refusing to obey an order believing it is discriminatory; and opposing discrimination committed by persons other than the employer (such as former employers, unions or co-workers)i. If the employees’ conduct falls into one of these categories, or if the employee has participated in an agency investigation seeking to determine if unlawful discrimination has taken place, an employer may not take retaliatory actions against that employee (such as firing, suspending, or demoting the employee).
A major issue that has divided the Courts hearing Title VII retaliation cases is whether an employee’s participation in an internal investigation conducted by the employer is afforded protection from retaliation. This question was recently decided by the Sixth Circuit in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennesseeii.
Vicky Crawford, a long-term employee of the Metropolitan Government of Nashville (“Metro”), at Metro’s request, participated in an internal investigation inquiring into allegations of sexual harassment against Metro’s Employee Relations Director (“Director”). During her interview, Crawford told the investigator that she had been sexually harassed by the Director.
When the investigation concluded, the Director was not disciplined for his actions, but Crawford, along with the Metro employees who had made sexual harassment claims, were fired. Metro alleged that Crawford had been fired for embezzling money and using drugs. After being fired, Crawford filed a Retaliation charge against Metro with the Equal Employment Opportunity Commission (“EEOC”) and subsequently sued Metro. The district court dismissed Crawford’s case.
The Sixth Circuit, upholding the decision of the trial court, held that Title VII only protects an employee’s conduct in an internal investigation, if the investigation is on-going because of a pending charge with the EEOC. This ruling makes it clear that if an employee participates in an internal, company investigation, without a charge pending before the EEOC, an employer’s adverse employment action will not be considered retaliation. Relying on cases from the Eighthiii, Ninthiv and Eleventhv Circuits, the Sixth Circuit articulated the rule very plainly: “Title VII does not protect an employee’s participation in an employer’s internal, in-house investigation, conducted apart from a formal charge with the EEOC; at a minimum, an employee must have filed a charge with the EEOC or begun some proceeding under Title VII” to be protected against an employer’s retaliation. In Ohio a challenge to an adverse employment action can still be reached by a public policy tort. But, Crawford does merit attention by employees and employers alike.
The Crawford decision seems to be at odds with established precedents in the area of discrimination law. Crawford creates tension with the US Supreme Court decisions in Ellerthvi and Faraghervii by allowing employers to take adverse actions against their employees if a charge is not pending with the EEOC without being retaliatory. The Ellerth/Faragher decisions give employers a safe harbor from liability for sexual harassment taken by supervisors against subordinates if the employer has an adequate anti-discrimination policy in place to prevent and/or correct any harassing behavior. The conflict created by Crawford is that, if an employer may retaliate against an employee for statements made during an internal investigation, employees will be less likely to voluntarily cooperate and follow the employer’s anti-harassment policies for fear of being retaliated against. Alternatively, if an employee makes a charge with the EEOC before seeking to take advantage of the employer’s anti-discrimination procedures, an employer may also have a defense to any liability because the employee’s claim may be seen as frivolous based on the affirmative defense given to employers in the Ellerth/Faragher decisions.
The Sixth Circuit also seems to be at odds with itself because the Crawford decision seems to be in conflict with its 2003 decision in Himmel v. Ford Motor Co.viii. In Himmel the Sixth Circuit expressed its view that employees should be encouraged to complain about potentially unlawful workplace conduct even when the employee is not certain that the conduct is unlawful as a matter of law. There does not seem to be a way to harmonize Crawford with Himmel. The clear effect of Crawford is in direct conflict to the public policy concerns addressed in Himmel. The real concern here is whether Crawford now applies in Ohio and trumps Himmel, or is Crawford nothing more than an aberration limited to the laws of Tennessee. The answer to this question is unclear but very important to employers and employees who fall under the Sixth Circuits jurisdiction. It is apparent that the Sixth Circuit was concerned about retaliation claims being made for any adverse employment action taken by an employer that may have touched an investigation into discrimination. The mistake that the Court made, however, was that the line that the Court draws disregards much prior precedent and law. Had the Sixth Circuit been drawing this line on a clean slate, the policy may have accomplished the goals that the Court was seeking. However, the slate in this instance is not at all a clean one, and the Sixth Circuit failed to consider how Crawford would effect many other established avenues in the area of discrimination law.
For employees the bottom line is this: If your employer requests your participation in an internal investigation of discrimination in the workplace (including racial, sexual, or gender discrimination), determine if a charge has been filed with the EEOC in regards to the alleged discrimination. If an EEOC charge has not been filed at the time you are asked to participate in the internal investigation, or if your employer claims not to know if there has been an EEOC charge filed, before answering any questions consult a lawyer about what rights you have and how you can best protect yourself.
As an employer, Crawford is not a license to engage in retaliatory adverse employment actions. Employers should have a written sexual harassment policy in place which includes a prompt investigation. Thus, in most cases you will conduct interviews before charges are filed with the EEOC, just about assuring that Crawford will provide an additional defense to adverse actions taken against your employees which could be considered retaliation. However, to give teeth to your policy, the better practice would be to include a strong non-retaliation provision in your policy guidelines.
As an ending note, as of November 28, 2006, Crawford filed for rehearing en banc with the Sixth Circuit. On good authority it has been passed along that being granted an en banc rehearing with the Sixth Circuit is less likely than being granted a writ of certiorari with the US Supreme Court.
Elfvin & Besser would like to thank their law clerk, David Gould, a law student at CWRU, for authoring this article.