The U.S. Supreme Court this week handed down a decision that opens the door to retaliation claims by employees who have not made a direct complaint to the employer about alleged unlawful activity. In a unanimous decision issued on January 26, 2009, the court held that the anti-retaliation provision of Title VII of the Civil Rights Act of 1964 extends beyond complaints initiated by an employee about unlawful employment activity to information volunteered by employees during internal investigations into such activity.

The plaintiff in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee participated in an employer-initiated investigation into rumors of sexual harassment by the Employee Relations Director. Responding to the investigator's questions, the plaintiff reported several instances of "inappropriate behavior" by the Director. During the investigation, two other employees also complained that the Director had sexually harassed them.

The employer took no action against the Director, but fired the plaintiff and the other two employees shortly after the investigation ended. The employer told the plaintiff that she was being terminated for embezzlement.

The employer prevailed on summary judgment in the District Court and in the Sixth Circuit, both of which found that because the plaintiff did not instigate or initiate a complaint, she failed to satisfy the requirements of the Title VII opposition clause for "active, consistent" activities opposing unlawful conduct.

The Supreme Court rejected this interpretation, stating: "Nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative, but not the one who reports the same discrimination in the same words when asked a question."

In conclusion, employers should review and update their anti-harassment, anti-discrimination, and anti-retaliation policies to ensure that employees have the means by which to report complaints or concerns about harassment or discrimination, and that those policies contain clear language stating that employees who raise complaints or concerns, as well as those who participate in investigations into such complaints, will not face retaliation. Employers should encourage employees to raise concerns or complaints, investigate the matters, and take appropriate action. Companies should ensure that training is occurring on a regular basis.


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