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

The US Supreme Court is set to hear a case this week that will provide important practical advice to workers asked to participate in an internal company investigation of alleged sexual harassment by a senior manager.

The question: Should you cooperate and speak freely, or remain silent?

"Be quiet if you want to keep your job," says Ann Buntin Steiner, a Nashville employment lawyer.

The issue arises in a case examining whether civil rights laws protect employees from retaliation by senior managers accused of sexual harassment.

The concern among employees is that if they speak freely and implicate a senior manager or supervisor in discriminatory conduct they will probably be subject to workplace retaliation by senior managers or supervisors.

The fear is not hypothetical. According to one study, 62 percent of state workers who complained of sexual harassment reported that they faced retaliation in the form of lowered job evaluations, denial of promotions, and being transferred or fired.

More than half of women in the US face some form of workplace sexual harassment, and most of them never report it, according to the National Women's Law Center.

Last term, the Supreme Court ruled for employees and against supervisors in two cases where workers lost their job or were otherwise punished after complaining about workplace discrimination. The high court held that civil rights laws protect workers from such retaliation.

On Wednesday, the justices take up another retaliation case – this one involving a 30-year employee in the payroll department of the Metropolitan Government of Nashville and Davidson County, Tenn. Vicky Crawford agreed to answer questions during an informal inquiry into allegations that the director of employee relations had engaged in sexual harassment. Among the director's duties was investigation of sexual harassment complaints.

Ms. Crawford did not initiate the investigation, nor had she filed any formal charges. The internal inquiry was conducted by a female lawyer in the legal department. Crawford told the lawyer she was afraid that if she told the truth she might lose her job. Nonetheless, she became one of three women who told the lawyer that the director of employee relations had made repeated inappropriate gestures and comments of a sexual nature in the workplace.

After the investigation, the director of employee relations was given a verbal reprimand, but no other disciplinary action was taken. Senior management then began an investigation of Crawford and her department. She and the other two women were fired.

Crawford sued.

The central question in the case is whether Crawford is protected under Title VII of the Civil Rights Act of 1964 from retaliation by senior managers after informally accusing a senior manager of sexual harassment. Her lawyers say she is protected because of her cooperation in the internal sexual-harassment investigation.

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.