A unanimous Supreme Court held last week that an employee who provides information to his employer as part of a discrimination investigation is protected against retaliation for doing so. While Title VII has always protected employees who opposed unlawful employment practices or participated in an investigation of an unlawful employment practice. The lower courts had found that the providing information in an internal investigations was not ""opposing" an unlawful employment practice. The Supreme Court said otherwise. Predictably, Management saw the dark side. Management lawyer James Burns of Reed, Smith said this ruling would increase the number of retaliation claims and would make employers more careful about which employees they spoke with:
"An employer who might otherwise say, ‘We have to conduct a thorough and prompt investigation, so let’s talk to everyone in the department,’ might now pause and think everyone interviewed will be engaged in protected activity by speaking to the extent they disclose something that reasonably appears to violate the law," he said. "So any adverse action taken against somebody who ‘testifies’ will give rise to a retaliation claim if the adverse action occurs relatively soon after the investigation."
Employers may want to forgo interviewing an employee with prior or current job performance problems, he said. But, he added, "I think the importance of conducting the investigation outweighs the risk of retaliation claims. Potential witnesses on the bubble may not be useful."
What that view fails to take into account is the positive side of this ruling. Now, it will be easier for companies to get to the truth – employees will speak more freely if they are not concerned about losing their job for doing so. The whole theory behind Title VII is that employers should thoroughly investigate employment claims and this ruling furthers that end.
Cum Laude graduate of Cumberland School of Law, Pet Mackey is a civil trial litigation expert who represents plaintiffs in business and consumer tort, contracts and construction, employment disputes and insurance. He is board certified as a Civil Trial Advocate by the National Board of Trial Advocacy, a Certified Alabama Mediator, and an “AV” rated lawyer by Martindale-Hubbell.