Retaliation Protections Applicable To Employee Providing Informaton In Internal Investigation

Retaliation against an employee that provides information in an in-house investigation by an employer regarding discriminatory practices in the workplace violates the anti-retaliation provisions of Title VII the Supreme Court ruled yesterday in Crawford v Metro Govt of Nashville, No 06-1595 (January 26, 2009).

The Nashville Metro Government launched an investigation “into rumors of sexual harassment” by a Hughes, the employee relations director for the government’s school district. Crawford, a 30 year employee, described to a human resources investigator several instances of sexually harassing behavior by Hughes:

• an instance in which Hughes answered her greeting “by grabbing his crotch and saying ‘You know what’s up’”;
• repeated instances in which Hughes “put his crotch up to her window”; and,
• one occasion where he entered her office and “grabbed her head and pulled it to his crotch”

The metro government took no action against Hughes but fired Crawford, accusing her of embezzlement. She filed suit claiming that her firing was in retaliation for the information she had provided in the human resources investigation regarding Hughes’s misconduct. After the district court and Sixth Circuit ruled that the anti-retaliation provisions of Title VII were inapplicable to Coleman, the Supreme Court agreed to hear her case.

The Supreme Court ruled that Crawford was protected by the anti-retaliation provisions of Title VII and reinstated her case. The Court strongly rejected the argument that Crawford was not protected because she had not herself complained of harassment and started the investigation, stating

nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks her a question.

Robert L. Abell
www.RobertAbellLaw.com

Retaliation & Age Discrimination Complaints Increase Most, EEOC Reports

Retaliation and age discrimination complaints led an overall increase in complaints filed with the Equal Employment Opportunity Commission, the Houston Chronicle reports, “Job Bias Lawsuits On The Increase.”  While there was an overall increase of 9% filed with the EEOC, retaliation complaints were up 18% and age discrimination complaints 15% in fiscal year 2007. 

Robert L. Abell
www.RobertAbellLaw.com

Retaliation Against Employee Taking Family Medical Leave Held Unlawful

Retaliation against an employee for taking leave under the Family Medical Leave Act (FMLA) is unlawful, the Sixth Circuit has ruled in Bryant v. Dollar General Corp. (No. 07-5006 decided August 15, 2008).   The court affirmed a jury verdict for a fired employee.

The employer, Dollar General, argued that the “FMLA does not bar an employer from firing an employee because that employee took FMLA leave,”  a contention that was soundly rejected.  First, the “overwhelming consensus of the case law .. as well as the nature of the statutory scheme and the FMLA’s legislative history” weighed “strongly in favor of rejecting” Dollar General’s argument.  Second, “any ‘right’ to take unpaid leave would be utterly meaningless if the statute’s bar against discrimination failed to prohibit employers from considering an employee’s FMLA leave as a negative factor in employment decisions.”  Third, adopting Dollar General’s position would run counter to principles of statutory construction that caution against absurd results. 

Robert L. Abell
www.RobertAbellLaw.com

Production of Confidential And Irrelevant Documents Dooms Retaliation Case

    An employee’s production to her lawyer of confidential but irrelevant to her case documents doomed her retaliation lawsuit the Sixth Circuit Court of Appeals ruled in Niswander v. Cincinnati Insurance Company (No. 07-3738 decided June 24, 2008).  The plaintiff, Niswander, was a plaintiff in a class action lawsuit claiming that the  insurance company employer discriminated against women in their pay.  In response to a pretrial discovery request for documents made by the insurance company, Niswander provided her lawyer with confidential documents that she admitted were irrelevant to her equal pay claim but did serve to jog her memory about acts of retaliation toward her.  Since Niswander admitted that the documents were not relevant to her equal pay claim, the court ruled that her production of the documents to her lawyer did not constitute protected activity for which retaliation would be unlawful.  Therefore, the court ruled that the employer lawfully terminated her for violating its confidential documents policy and upheld the trial court’s summary judgment dismissal of her retaliation claim. 
    What doomed Niswander’s claim was her admission that the documents were irrelevant to her equal pay claim, the only claim she had pending at the time of the documents’ production.  The Sixth Circuit advised that an “individual’s delivery of relevant documents during the discovery process or the giving of testimony at a deposition clearly falls within the ambit of participating ‘in any manner’ in a Title VII proceeding.” 

Robert L. Abell
www.robertabelllaw.com

Employer’s Retaliation Against Fiancee of Employee Charging Discrimination Violates Title VII

    Does Title VII prohibit employers from taking retaliatory action against employees not directly involved in protected activity, but who are so closely related to or associated with those who are directly involved, that it is clear that the protected activity motivated the employer’s action?  “Yes” answered the Sixth Circuit Court of Appeals in its decision Thompson v. North American Stainless, LP (decided March 31, 2008).  This case appears to the first decision by a court of appeals holding unambiguously that a victim of third-party retaliation has a cause of action under Title VII. 

    The plaintiff, Thompson, was engaged to a co-worker, Regalado, an engagement well-known throughout the workplace, and she filed a gender discrimination charge with the EEOC.  Slightly more than three weeks after the employer learned of Regalado’s charge, it fired Thompson, her fiancee. 

    The Sixth Circuit reversed a summary judgment granted by the district court reasoning that allowing such third-party retaliation would undermine the purposes of Title VII.  The court conceded that a literal reading of the applicable statutory language may not authorize a cause of action for third-party retaliation.  However, the court likewise and correctly recognized that courts are charged, as the Supreme Court has observed on numerous occasions, to go beyond a statute’s literal language when necessary to avoid a result at odds with its plain purpose.   The purpose of Title VII’s anti-retaliation provision, the court reasoned, was to prohibit employer actions that would dissuade a “reasonable worker” from filing a charge of or reporting on discrimination.  Since firing a family member or other close association would likely have such effect, the court concluded that Title VII must be construed to authorize a direct cause of action for third-party retaliation. 

    As a practical matter, the Sixth Circuit’s holding should not open a new avenue of potential liability for employers.  Title VII’s anti-retaliation provision prohibits conduct likely to deter a “reasonable worker” from making a charge or report of discrimination.  An employee who has made a charge of discrimination and then has their spouse fired in retaliation would certainly have a cause of action for retaliation.  It would seem to make little, if any, different then in terms of potential employer liability whether the cause of action for retaliation is by the third-party spouse or the employee who has made the discrimination charge. 

Robert L. Abell
www.robertabelllaw.com

Employer’s Toleration of Co-Worker Retaliation Can Lead to Liability

    Employees who report to their employer harassing conduct or a hostile work environment created by the misconduct of a co-worker can find themselves the target of retaliation by those responsible for the misconduct or other employees that consider themselves allies of the offender.  The United States Court of Appeals for the Sixth Circuit recognized in Hawkins v. Anheuser-Busch, Inc., No. 07-3235 (6th Cir. February 19, 2008), that toleration of such co-worker retaliation could lead to liability under Title VII for the employer. 

    The threshold for unlawful retaliation, the Court noted, was whether the retaliatory act would “dissuade a reasonable worker from making or supporting a charge of discrimination.”  The Court established a three-part test for employer liability to arise: (1) whether the co-worker’s retaliatory conduct is sufficiently severe so as to dissuade a reasonable worker from making or supporting a charge of discrimination; (2) whether supervisors or members of management have actual or constructive knowledge of the co-worker’s retaliatory behavior; and, (3) whether supervisors or members of management have condoned, tolerated, or encouraged the acts of retaliation, or have responded to the employee’s complaint so inadequately that the response manifests indifference or unreasonableness under the circumstances. 

Robert L. Abell
www.robertabelllaw.com