Employers understand that taking prompt and appropriate action, including conducting investigations, is an essential component of addressing allegations of discrimination under state and federal laws. A recent Supreme Court decision emphasizes the need for employers to carefully review and document any employment actions involving employees who have participated in such an investigation.
In Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, 555 U.S. ____, 2009, the Supreme Court clarified that employees who speak out about discrimination as part of an internal investigation, whether of their own initiative or in answering questions during the investigation, can be protected under the antiretaliation provision of Title VII of the Civil Rights Act of 1964. While employers may have generally assumed some protections for such employees, the Court definitively stated that an employee can "oppose" a discriminatory act, and thus invoke the antiretaliation protections of Title VII, by describing inappropriate behavior in response to a question, and that the employee need not himself or herself have initiated the discussion or come forward actively with a complaint.
Following this decision, employers should not shy away from conducting internal investigations into allegations of discrimination, as a prompt and appropriate investigation can provide the employer with an affirmative defense in response to a later claim. Employers should, however, be cognizant of the broad reach of Title VII's antiretaliation protections and review their applicable policies, employment actions and documentation of the reasons for the employment actions, in light of this expansive coverage.