J. Robert Brame and David S. Fortney, Editors
McGuireWoods LLP and Fortney & Scott, LLC

Vol. 5, No. 7
March 2008

EMPLOYER RETALIATION

Supreme Court to review retaliation claims

The U.S. Supreme Court has agreed to review a retaliation case that could have a significant impact on employers. The Court will determine whether an employee who cooperates in an employer's internal investigation of a sexual harassment allegation, where no agency charge has been filed, is protected from retaliation under Title VII of the Civil Rights Act of 1964.

History

The number of employer retaliation claims heard by the Supreme Court has steadily increased. The justices have decided two major retaliation cases in the past three years, and in this term, they have already granted review of three cases. The number of cases before the Court isn't surprising given the surge ― nearly 30 percent since 2006 ― in retaliation charges filed with the Equal Employment Opportunity Commission (EEOC).

In a landmark 2006 ruling, Burlington Northern & Santa Fe Railway Co. v. White, the Court extended the reach of retaliation claims, deciding that workers may file retaliation lawsuits under Title VII even when an employment action doesn't diminish their pay, hours, or benefits or cause them to suffer a monetary loss of any kind.

More recently, the Court agreed to review cases that raise the question of whether retaliation claims may be filed under Section 1981 of the Civil Rights Act of 1866 and the Age Discrimination in Employment Act.

To protect or not to protect?

In this case, the Court will decide what constitutes protected activity in retaliation cases under Title VII, the type of case in which the EEOC has already seen the highest increased percentage of filings. Vicky Crawford argued that she was discharged because of statements she made to an investigator during the internal investigation of another employee's sexual harassment allegation. There was no agency charge pending during or following the investigation.

Although the employer claimed she was discharged for drug use and embezzlement, Crawford claimed she was discharged because she told the investigator that she had witnessed sexually harassing behavior at work.

The district court dismissed her claim before trial, and the appeals court affirmed. The appeals court ruled that Title VII's retaliation provisions don't protect an employee's participation in an employer's internal investigation conducted apart from a formal charge with the EEOC.

Crawford appealed to the Supreme Court, and the U.S. solicitor general urged the Court to review the case.

Impact on internal investigations

If the Court rules in favor of Crawford, Title VII's protection will be expanded to a significantly larger group of employees than those currently entitled to protection. In addition, employers' exposure to retaliation claims could increase by conducting full-blown internal investigations.

Copyright 2008 M. Lee Smith Publishers LLC

FEDERAL EMPLOYMENT LAW INSIDER does not attempt to offer solutions to individual problems but rather to provide information about current developments in federal employment law. Questions about individual problems should be addressed to the federal employment law attorney of your choice.