U.S. Supreme Court To Review Retaliation Law

One of the most important employment news to circulate the web is that the U.S. Supreme Court recently granted review of a retaliation case that could have a significant impact on employers. The case is Crawford v. Metropolitan Government of Nashville and Davidson County Tennessee (U.S. Cert. granted January 18, 2008). In this case, the Court will determine whether an employee who cooperates in an employer's internal investigation of a sexual harassment allegation, where there was not an agency charge filed, is protected from retaliation under Title VII.

While working at the Office of Human Rights, we had a broad interpretation of the law regarding retaliation. Since the burden of proof is on the employee, the employee must show that they opposed an employment practice made unlawful under Title VII or they participated in an investigation under Title VII. If the employee claims to have participated in an internal investigation, such as in this case, they would have to show that the internal investigation would come under Title VII. At the Agency, we would have accepted the employee's participation in the internal investigation factually to meet the prima facie requirements. The defense would like to argue that if there was not a formal Title VII complaint filed, they could not have had notice of the violation to have retaliated against the employee. Defendants read the law very narrowly. The Courts are imposing more on employees to notify employers of Title VII violations and allow the employer the opportunity to investigate. If an employee involved in an internal investigation is not protected from retaliation by an employer, we can expect an improper investigation because the employee may not be truthful (Chilling effect) -- fear of losing their job. There is no doubt that protection from retaliation should be extended to company internal investigations involving a Title VII matter.

We will watch to see if the U.S. Supreme Court agrees. Hopefully, the other facts in the case will not prevent the Court from answering the question that all employment attorneys want answered.