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Top Ten Issues In Employment Law For HR Professionals In Virginia in 2008: #3

Published by on January 16, 2009

We will be posting over the next week the top ten developments in employment law for HR professionals in Virginia in 2008.  The list is in no particular order.  Topic number 3 is: Supreme Court Expands Scope of Retaliation: Significantly?  More after the break. The U.S. Supreme Court issued two decisions expanding the scope of retaliation […]

We will be posting over the next week the top ten developments in employment law for HR professionals in Virginia in 2008.  The list is in no particular order.  Topic number 3 is:

Supreme Court Expands Scope of Retaliation: Significantly?  More after the break.

The U.S. Supreme Court issued two decisions expanding the scope of retaliation under federal employment discrimination statutes.   In CBOCS West, Inc. v. Humphries, the Supreme Court ruled that 42 U.S.C. 1981 permits a claim for retaliation.  In Gomez-Perez v. Potter, the Court ruled that the ADEA prohibits federal employees from retaliating against employees who file age discrimination complaints. 

Neither 42 U.S.C. §1981, nor the ADEA amendment imposing federal sector liability include the words “retaliate” or “retaliation.”  The Court, nevertheless, read retaliation into the meaning of both statutes finding that the federal discrimination statutes “necessarily encompass[ ] retaliation.”  The CBOCS decision clarifies that an employee may bring a race retaliation claim without first filing an EEOC charge.  Claims under § 1981 have a four-year statute of limitations.

In 2008, the Supreme Court has also heard oral arguments in Crawford v. Metropolitan Gov’t of Nashville, and a decision can be expected by the Court during this term.  The case involves a claim by a Tennessee woman, Vicky Crawford, who asserted that Title VII’s anti-retaliation provision protects workers, like her, who voluntarily provide information during an internal investigation of suspected unlawful sexual harassment.  Title VII’s anti-retaliation provision prohibits employers from (1) retaliating against employees who oppose unlawful practices (the “opposition clause”), or (2) participate in various types of Title VII proceedings (the “participation clause”).

In 2002, Crawford participated in an internal investigation into sexual harassment complaints made by some of her female co-workers.  Crawford’s co-workers asserted that they had been sexually harassed by Gene Hughes, the employee relations director for the Metro School District.  As the employee relations director, Hughes was responsible for investigating all claims of discrimination and harassment. As a result, the investigation was conducted by the assistant director of human resources, Veronica Frazier. Frazier interviewed several employees in the administrative department who worked with Hughes, including Crawford.  Crawford was employed for 30 years at the Metropolitan School District (“Metro”). Her employment was terminated in January 2003.

Crawford sued Metro claiming that it violated Title VII by firing her because her act of providing information regarding Hughes’ unlawful conduct constituted protected activity under the statute. The trial court held that Crawford’s conduct was not protected under Title VII’s anti-retaliation provision and dismissed her case.   The Sixth Circuit agreed with the trial court. The court held that Crawford’s actions of relating unfavorable information during the course of an internal investigation did not qualify as overt opposition because Crawford did not allege that she initiated any complaint prior to her participation in the investigation or after the investigation, but prior to her termination. Therefore, Crawford could not bring a retaliation claim under the opposition clause.

The Court has proven to be somewhat sensitive to employees alleging retaliation in employment in such decisions as CBOCS, Gomez-Perez and Burlington Northern v. White.  It  remains to be seen how far the scope of “protective activity” might be extended by the Supreme Court, and what type of “retaliation” protections might be available to employees/plaintiffs as a result.  What is certain, however, is that employers should treat retaliation claims as a real risk in response to every harassment/discrimination complaint – regardless of either the perceived merit or formality of the employee’s complaint.

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