In another victory for employees, the U.S. Supreme Court has ruled unanimously that employees who answer questions in an employer’s internal investigation of possible harassment or discrimination are protected from retaliation for doing so, even though they did not come forward to complain. Crawford v. Metropolitan Gov’t of Nashville and Davidson County, Tennessee, No. 06-1595 (Jan. 26, 2009).

The case involved a school system’s internal investigation of a sexual harassment complaint brought against an employee relations director, in which the employer interviewed several of the complaining employee’s co-workers. In answering the employer’s questions, one of those co-workers, Vicky Crawford, mentioned that the director had engaged in what the Court described as “gross clowning” and “sexually obnoxious” behavior toward her. The employer reprimanded the director, but later fired Crawford for alleged embezzlement. Crawford sued under that part of Title VII of the Civil Rights Act of 1964 which prohibits retaliating against employees because they have “opposed” discrimination, claiming that her termination was motivated by her statements during the investigation. The employer argued that although the law protects employees who oppose discrimination by bringing complaints, an employee who merely answers questions has not “opposed” anything. The Sixth Circuit Court of Appeals sided with the employer.

In reversing the lower court, the Supreme Court described that distinction as “freakish.” The Court rejected as speculative the employer’s argument that transforming every witness in an internal investigation into a potential retaliation plaintiff would deter employers from conducting thorough investigations. Citing its earlier cases, the Court held that employers would continue to have “a strong inducement to ferret out and put a stop to” discrimination in order to avoid liability. Allowing employees to be punished for answering questions in internal probes, the Court said, would render such investigations virtually useless by making employees afraid to participate, making it more likely that unlawful discrimination and harassment would continue.

The Court thus reemphasized that management has a powerful incentive to promptly investigate possible harassment or discrimination. In doing so, however, employers may wish to take greater care in deciding who to interview. For instance, unless it is reasonable to expect that such an employee may have relevant knowledge, an employer may want to think twice about interviewing someone whose job is in jeopardy, out of concern that if the employee is terminated soon after being interviewed, he or she will have a ready-made retaliation claim. At the same time, if an employer passes over employees who may shed light on what happened, it runs the risk that a judge or jury will find that it failed to take adequate steps in ferreting out a problem. It is thus more important than ever for employers to carefully plan their investigations, including which employees should be interviewed.