No Good Deed Should Be Punished

Employers May Not Punish an Employee For Cooperating With a
Harassment Investigation

Last month, the United States Supreme Court clarified that an employer may not punish an employee for cooperating with an internal harassment investigation – even if the cooperating employee did not initiate the original complaint or allegation of harassment. While the ruling itself is not necessarily groundbreaking, it should serve as an important reminder to employers that any employee involved in a discrimination or harassment investigation must not be treated differently or retaliated against for their participation in the investigation. Otherwise, as the Supreme Court made clear on January 29, 2009, these "employee witnesses" will have an actionable retaliation claim against the employer.

In the recent case, the employer commenced an internal investigation after receiving complaints and hearing rumors of sexual harassment by one of its employees. Although she never initiated the harassment complaint herself, the plaintiff responded to questions posed by the human resources representative during the investigation. She candidly described several instances of sexually harassing behavior that she had personally witnessed by the employee under investigation. Shortly after her participation in the investigation, the employer terminated the plaintiff for alleged embezzlement. Believing her termination to be pretext for her cooperation in the harassment investigation, she filed a charge of retaliation and subsequent lawsuit against her employer.

The employer argued that Title VII does not protect individuals who simply respond to questions in an internal investigation without making a complaint of harassment or discrimination. The Supreme Court disagreed and ruled that, although she had not instigated or initiated the harassment complaint under investigation, Title VII nevertheless protects an employee, like the plaintiff, who participates in a harassment investigation. Specifically, the mere acts of responding to an employer's questions or providing a statement concerning allegations of harassment and discrimination constitute protected activity under Title VII for which an employer may not retaliate.

With retaliation claims on the rise in recent years, this decision serves to warn employers that they cannot treat employees any differently for cooperating with internal investigations. This ruling should not dissuade an employer from conducting a thorough investigation when put on notice of possible harassment in the workplace. This decision makes clear, once again, that prompt and comprehensive corrective action is still an employer's best defense against any Title VII lawsuit.

If you have any questions or concerns about investigations of harassment or discrimination in your workplace or about potential retaliation, contact a member of Ice Miller's Labor and Employment Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.