Expert: U.S. Harassment Case Won't Alter Employer Probes

Employees who are fired for serving as witnesses in internal sexual harassment investigations have legal protection and can sue employers for retaliation, the Supreme Court ruled yesterday.

The decision resolves a conflict between different judicial circuits on the issue of how to apply sex discrimination law.

The case was sparked by a Nashville, Tenn., school district's investigation of conduct by its employee relations director. Gene Hughes. Vicky Crawford, the district payroll supervisor, who had not lodged the complaint against Mr. Hughes, was fired after testifying he had sexually harassed her.

The decision should not change the advice given employers about how to conduct sexual harassment investigations, according to Victoria Zellers, a labor and employment lawyer at Cozen O'Connor in Philadelphia.

"I believe the decision takes away a technical legal defense from an employer," Ms. Zellers said, "but in ongoing litigation, it doesn't change the advice I would give employers faced with sexual harassment investigations."

She added that employment lawyers have always instructed their clients not to retaliate against people who had reported sexual harassment activity, "whether they were the initial complainant or not," she said.

"In my opinion, on a practical basis, the guidance to employers would not be any different than before this decision."

That advice, she said, "is to conduct thorough investigations and to make sure that no one retaliates against anyone who has reported sexual harassment or discriminatory behavior."

The case decided by the Supreme Court is titled Crawford v. Metropolitan Government of Nashville and Davidson County, Tenn., No. 06-1595.

Ms. Crawford, who worked for her school system for 30 years, answered questions asked by those conducting the investigation prompted by others who did complain.

Writing for the majority, Justice David Souter noted that Ms. Crawford had told about inappropriate sexual conduct by Mr. Hughes–conduct described as "louche goings-on," including "gross clowning" and "sexually obnoxious" behavior by him.

Mr. Hughes received an oral reprimand for his behavior, but Ms. Crawford and two other women who had accused him of inappropriate behavior were fired.

She filed suit under Title VII of the Civil Rights Act of 1964, claiming that the school district was retaliating for her report of Hughes' behavior, in violation of the section which makes it unlawful for an employer to discriminate against any employee who has opposed an unlawful employment practice or "has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing."

A district court granted the school district summary judgment, and a panel of the 6th U.S. Circuit Court of Appeals affirmed the dismissal.

The courts held that the opposition clause in the provision she sued under demanded "active, consistent" opposing activities, whereas Ms. Crawford had not initiated any complaint prior to the investigation.

The lower courts also found that the participation clause did not cover the school system's internal investigation because it was not conducted pursuant to a Title VII charge pending with the Equal Employment Opportunity Commission.

The high court decision held that the anti-retaliation provision's protection extends to an employee who speaks out about discrimination not on her own initiative but in answering questions during an employer's internal investigation of the behavior.

"Nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when asked a question," Justice Souter wrote.

Justice Samuel Alioto wrote a concurring opinion in which Justice Clarence Thomas joined.

Ms. Zellers said she was not surprised at the decision. "There was already a split between circuits on the issue, and the woman who was involved in the case had reported harassing conduct toward her," Ms. Zellers said.

Ms. Crawford's case now goes back to the lower court for a trial.