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Top Ten Developments in Employment Law for HR Professionals in Virginia — #4

Published by on January 15, 2010

The top ten developments in employment law for HR professionals in Virginia for 2009 continues, in no particular order.  Number 4:  Responding to Questions During an Investigation is Protected Activity Under Title VII.  More after the break. In Crawford v. Metropolitan Government of Nashville and Davidson County, the Supreme Court held that Title VII’s retaliation provision extends […]

The top ten developments in employment law for HR professionals in Virginia for 2009 continues, in no particular order.  Number 4:  Responding to Questions During an Investigation is Protected Activity Under Title VII.  More after the break.

In Crawford v. Metropolitan Government of Nashville and Davidson County, the Supreme Court held that Title VII’s retaliation provision extends to protect employee conduct in response to an employer’s questions during an investigation.  In Crawford, an employee was interviewed during an employer-initiated investigation concerning allegations of sexual harassment by a supervisor.  The employee responded with her own complaints of harassment, and was fired a few months later.  The Sixth Circuit found that Title VII’s retaliation provision, which applies to protect employee opposition to unlawful employment practices or participation in an EEOC proceeding, did not apply. 

The Supreme Court reversed, holding that “opposing” unlawful employment practices extends to an employee speaking out about discrimination in response to an employer’s questions during an internal investigation.  The Court found that the term “opposed” under the statute is not limited to “active, consistent behavior in ordinary discourse, and may be used to speak of someone who has taken no action at all to advance a position beyond disclosing it.”  The Court reasoned that “if an employee reporting discrimination in answer to an employer’s questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses.”

This case highlights the broad interpretation given to the retaliation clause.  As one blog commentary notes, “retaliation cases can be costly (and difficult to disprove) for employers.”  The blog cites that the median award for retaliation cases in the last 7 years was $225,000.  To illustrate, last year a California police officer was awarded $3.6 million on his retaliation claim after he testified in support of a female colleague in her sexual harassment case.  In Connecticut, a lab employee who was terminated after he expressed opposition to a new blood test received over $4 million in compensatory damages.

Another example of just how costly discrimination cases can be comes out of a federal court in Richmond.  Recently, a jury awarded $3.5 million to a former employee who was discharged by his employer for allegedly stealing some company computers.  The employee claimed he was discriminated against because of his race and also maliciously prosecuted for the alleged theft.  In his brief, the employee portrayed a less-than-thorough investigation by the company into the alleged theft and racially disparate treatment of the suspects.

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