High court case: If harassed workers talk, can they be fired?

Lawyers for her former employer, Nashville and Davidson County, say that because Crawford hadn't filed a formal discrimination or sexual harassment charge with the Equal Employment Opportunity Commission (EEOC) or taken other direct action in opposition to the alleged harassment, she could not claim antiretaliation protection under Title VII.

A federal judge agreed and threw out Crawford's case. That decision was affirmed by a three-judge panel of the Sixth US Circuit Court of Appeals. "At a minimum, an employee must have filed a charge with the EEOC or otherwise instigated proceedings under Title VII," the Sixth Circuit panel ruled.

At issue before the Supreme Court is whether the Sixth Circuit was too stingy in applying the protections of Title VII. In passing Title VII, Congress outlawed retaliation against employees who "participate" in a discrimination investigation, or who "oppose" a form of discrimination they are encountering.

Crawford never filed a charge accusing the senior manager of sexual harassment, and she never took the initiative to declare her opposition to the alleged sexual harassment. Fearful that she might lose her job, she kept quiet about the alleged harassment until she was questioned by the legal department lawyer.

Is that enough to trigger Title VII protection?

"The case boils down to whether someone who is asked to cooperate in an internal [workplace] investigation can invoke Title VII's retaliation provision without having done anything more overt or affirmative to put the employer on notice of a potential violation," says Rae Vann of the Equal Employment Advisory Council, who filed a friend-of-the-court brief supporting the metropolitan government.

"The statute is clear, you either oppose or you participate," Ms. Vann says. "Merely being a coincidental participant in an investigation that was begun by the employer proactively isn't enough to do it."

Crawford's lawyers, Ms. Steiner, and University of Washington Law School Prof. Eric Schnapper say antidiscrimination laws were written to be broadly interpreted to protect victims of discrimination. They say the Sixth Circuit's interpretation leaves a gap in the law's protections that creates a strong incentive for employees to remain silent rather than participate in an internal company investigation.

"If I had a client and I was in the Sixth Circuit and an employer was conducting a sexual harassment investigation, I would advise her not to cooperate," says Mr. Schnapper.

"That means the employer can't find out if sexual harassment is going on," he adds. "It is bad for the employer, it is bad for the employee, it is bad for everybody."

Vann says the law is structured to encourage employees to take an active stance against discrimination and that when they stand up and speak out against discrimination they enjoy the full protections of Title VII. "Congress has to draw a line somewhere," she says.

Without that clear line, employers might face a trumped-up discrimination lawsuit every time a dishonest or poor-performing worker is fired, Vann says.

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