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Employers should heed Court ruling on retaliation claims

January 28, 2009

Barran Liebman LLP Electronic Alerts
Attorneys practice labor and employment law
Electronic AlertSM, 1/27/09

A Reminder to Be Careful About Potential Retaliation Claims

The United States Supreme Court held yesterday that an employee’s statement about sexual harassment made during a company’s internal investigation warrants protection against retaliation. Crawford v. Metropolitan Government of Nashville, 555 U.S. ___ (2009). This decision is not surprising, but serves as an important reminder to employers: retaliation claims continue to increase.

Almost three years ago, in Burlington Northern and Santa Fe Ry. Co. v. White, the Court addressed what types of actions by an employer may be retaliatory. The court expanded Title VII’s anti-retaliation provision, holding that it extends beyond workplace-related retaliatory acts and covers any employer action that would have been materially adverse to a reasonable employee. Now, the Court has addressed the other side of the coinwhat actions by an employee deserve protection from retaliation.

The case involved an employee, Crawford, who was interviewed by a human resources officer as part of an internal investigation of rumors of sexual harassment by the director of employee relations. Crawford was asked whether she had witnessed any inappropriate behavior by the director. She described several instances of sexually harassing behavior by the director towards her. The investigation did not result in any action against the director; however, Crawford (and two other employees who also reported being sexually harassed by the director) were fired after the investigation concluded. The employer maintained that it terminated Crawford for embezzlement. Crawford believed that she was terminated in retaliation for her report of the director’s behavior.

The employer argued that Crawford’s conduct was not activity protected from retaliation under either the “participation” or “opposition” clause of Title VII. The Sixth Circuit Court of Appeals affirmed, finding that the opposition clause “demands active, consistent ‘opposing’ activities to warrant protection.” The Supreme Court disagreed and unanimously held that an individual need not have raised the underlying discriminatory conduct on her own initiative in order to allege a retaliation claim under Title VII. Instead, even if the individual raises the discriminatory conduct in response to questions by her employer during an internal investigation, that conduct is considered “opposition” and the individual is protected from retaliation.

This case serves as an important reminder that the types of activities that are protected from retaliation may be broader than you thought. As a result, employers should continue to take employee concerns seriouslyespecially concerns of allegedly discriminatory or harassing conductand investigate those concerns promptly no matter how the allegations were brought to the employer’s attention.

### Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. Alerts are not intended as legal advice, but as employment law, labor law, and employee benefits announcements. If this has been forwarded to you, and you would like to begin receiving Electronic Alerts directly, please call Traci Hopfe at 503-276-2115 or email thopfe@barran.com. Copyright © 2009 by Barran Liebman LLP

### Barran Liebman LLP

  
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cc33 January 28, 2009

Am I dreaming here or what. Supervisors should be wary of any retaliation whatsoever. Congrats to the courts. They got this one right.

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