Next Wednesday, October 8, 2008, the United States Supreme Court will hear oral argument in the case of Crawford v. Metropolitan Government of Nashville. The issue is whether employees are protected from retaliation when they answer questions in an employer’s internal investigation of a discrimination claim. In Vicky Crawford’s case, the City received reports that a supervisor was engaging in sexual harassment. An investigator asked Crawford if she had seen any sexual harassment by this supervisor. She said yes, and reported that she herself had been harassed by this supervisor. She was fired shortly thereafter. The Sixth Circuit Court of Appeals held that even if Crawford was fired for answering the investigator’s questions, that was not protected participation in any official proceeding.
An amicus brief by the National Employment Lawyers Association (NELA) and other groups argues that employees like Crawford need protection. If we expect employers to voluntarily comply with the antidiscrimination laws, then the employers need to get accurate information about what is happening on the shop floor. Unless employees are protected for what they say during internal investigations, employers will not get the best information about what is really happening. The brief notes that the law protects both “participation” in proceedings, and also “opposition” to unlawful discrimination. While “opposition” activity must be based on facts that could reasonably support a finding of unlawful discrimination, “participation” has normally been broadly construed to encourage all persons to assist in enforcement activities. Participating witnesses are normally protected no matter what they say.
If Crawford is unsuccessful in her appeal, employees will need to be more attentive to answering investigators’ questions only when an administrative charge or court action is already filed. It may encourage employees to file quickly so that their activities, and those of their witnesses, will be protected. Hopefully, the Supreme Court will see the wisdom in the long line of prior court decisions that have provided protection to participation at any stage of a case, including the very initial internal investigations. A decision is expected in the first half of next year.
