CONNstruction - Summer 2009 - (Page 15)

newsandviews U.S. Supreme Court Expands Employee Protection Against Retaliation Last January, a unanimous Supreme Court ruled that Title VII’s anti-retaliation provisions protect employees who disclose allegations of unlawful discrimination while being interviewed during a company’s internal investigation. In Crawford v. Metropolitan Gov’t of Nashville and Davidson County, the Court held that employees need not initiate a complaint in order to have engaged in protected activity under Title VII. Instead, when an employee reports improper conduct during an internal investigation, that report qualifies as protected opposition to the improper conduct. In Crawford, the employer’s human resources officer was investigating rumors that the employee relations director had engaged in sexual harassment. As part of the investigation, the HR officer questioned a co-worker of the complainant, Vicky Crawford. Ms. Crawford responded to questions and disclosed that the alleged harasser had sexually harassed her in the past. Shortly after the investigation was complete Crawford was terminated for alleged involvement in embezzlement, which she denied. Crawford sued, alleging retaliation based on her disclosure of harassment during the investigation. Title VII’s anti-retaliation provision makes it unlawful “for an employer to discriminate against any employee” who: 1. “has opposed any practice made an unlawful employment practice by this subchapter” (opposition clause), or 2. “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter” (participation clause). Crawford’s employer argued that her statements about the alleged harasser in response to questions during the investigation did not qualify as protected opposition or participation, and two lower courts agreed. The Court of Appeals for the Sixth Circuit determined that for opposition to warrant protection under Title VII, the conduct must be “active and persistent.” The Supreme Court reversed. Writing for the Court, Justice David Souter explained that in the absence of statutory definition, the word “oppose” should be given its ordinary meaning. Using a dictionary definition, he stated that opposition meant “to resist or antagonize . . . to contend against, to confront, resist; withstand.” Most importantly, the Court stated that the ordinary meaning of “oppose” does not pertain only to conduct that is active and consistent, but goes further to include situations in which an individual takes “no action at all to advance a position beyond disclosing it.” The Court reasoned that Crawford’s conduct was opposition in the ordinary sense of the word. To find otherwise, according to Justice Souter, would be to announce a “freakish rule protecting an employee who reports discrimination on her own initiative, but not one who reports the same case of discrimination in the same words when her boss asks her a question.” By John Leahy CCIA Director of Labor Relations and Human Resources Employers should be careful when making disciplinary decisions to avoid taking adverse action when an employee has recently participated in an internal investigation or has complained about discrimination. Impact for Employers Retaliation charges filed with the EEOC more than doubled between 1992 and 2007. More than 32 percent of charges filed with the EEOC in 2007 were based on retaliation. Interestingly, courts hold that if a plaintiff can show he/she had a “good faith” belief that the conduct being opposed was illegal and can show an adverse employment action in response, (usually by showing what courts call “temporal proximity” – a short time span between the opposition and the discipline or termination) a plaintiff can recover even if the court determines that the underlying conduct complained of was not in fact prohibited by law. Employers should be careful when making disciplinary decisions to avoid taking adverse action when an employee has recently participated in an internal investigation or has complained about discrimination. This is yet another reason to make sure employee job performance is properly documented. It is also a good idea to have one person in a business unit responsible for reviewing all terminations before implementation. CONNstruction / Summer 2009 / 15

Table of Contents for the Digital Edition of CONNstruction - Summer 2009

CONNstruction - Summer 2009
Adapting to Change
The Future will be Lean and Green
Think Regionally, Act Regionally
Demanding Notice and an Opportunity to Be Heard When a State Agency Changes its Rules: A Call for Democracy
U.S. Supreme Court Expands Employee Protection Against Retaliation
ConsensusDOCS™: Dare to Change
Reauthorization of Federal SAFETEA-LU
Get on the Bus: LiUNA
Get on the Bus: LiUNA
Economic Downturn Gives Owners Time for Business Exit Strategy Planning
AGC/CT Annual Meeting
CONNDOT-CAAPA Paving Conference
Senator Lieberman Visit
UCAC’s Spring General Membership Meeting
Local 478 Education Trust Dinner
Index to Advertisers

CONNstruction - Summer 2009