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Employment Law Alert: Interesting Title VII/”Protected Activity” Case From The Sixth Circuit

On November 14, the Sixth Circuit Court of Appeals issued an interesting opinion regarding what constitutes “protected activity” under Title VII. In Crawford v. Metro. Gov’t of Nashville and Davidson County, the Court rejected the plaintiff’s contention that she was engaged in protected activity under Title VII when, after being called into an investigatory meeting with Human Resources, she revealed harassment allegedly directed at her and others.

After receiving reports of alleged harassment by its employee relations director, the county initiated an internal investigation, which included interviewing several employees, including the plaintiff. During the course of her interview, Crawford -- a 30-year employee of the county -- disclosed that the director had sexually harassed her and other female employees on several occasions, including making sexually suggestive comments and gestures. At the conclusion of the investigation, the County determined that the director had engaged in inappropriate behavior, but not to the extent suggested by Crawford. Additional training and education of the director and other staff members was recommended, but no disciplinary action was taken against the director.

Approximately six months following her interview concerning the director, Crawford was terminated, after being accused of embezzlement and drug use. Crawford claimed these allegations were unfounded, and also alleged that two others who had made allegations concerning the director were also fired. She sued the county for retaliatory discharge in violation of Title VII.

The trial court rejected Crawford’s retaliatory discharge claim, granting summary judgment for the county, and Crawford appealed. On appeal, the Sixth Circuit held that Title VII’s “participation clause” -- which protects employees who have “opposed any practice made an unlawful employment practice” -- requires “active, consistent” and “overt” opposition to some employment practice or conduct in the workplace to be protected.

Crawford also urged the Court to “break from the general trend” and hold that employees who participate in their employers’ internal investigations should be treated as having “made a charge, testified, assisted, or participated . . . in an investigation, proceeding, or hearing” under Title VII. Saying that Title VII’s participation clause only applies “once statutory procedures commence,” the Court rejected this argument, as well. Adopting Crawford’s argument, suggested the Court, would have a chilling effect on employers’ proactive efforts to address and resolve discrimination and harassment issues by conducting their own internal investigations before a charge of discrimination or harassment is ever filed.

Bottom Line

While this is an unpublished decision, it is obviously a good result for employers. The Sixth Circuit continues to recognize the important role employers’ internal investigations play in resolving Title VII issues before they ever get to an EEOC proceeding or civil lawsuit.

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