Tuesday, January 27, 2009

Supreme Court extends anti-retaliation protection to anyone participating in investigation --- even if its not their own complaint.

The Supreme Court held yesterday in Crawford v. Metropolitan Government of Nashville that persons who participate in an internal investigation of alleged discriminatory behavior are protected from retaliation even if they did not bring the original internal complaint. The provision of the Civil Rights Act which prohibits retaliating against those who ‘oppose’ discriminatory acts includes everyone who participates in an investigations of allegations of discrimination, even if the investigations precede in the time the official filing of a charge of discrimination with an administrative agency, and even if those investigations involve allegations by other employees than the one interviewed.

In a 9-0 decision, with Justices Alito and Thomas concurring in the judgment, Justice Souter explained that to hold otherwise would undermine the mechanism established by the Faragher and Ellerth cases which provide an incentive for employers to prevent and eliminate workplace discrimination by allowing the punishment of anyone who participated in such activities.

The decision, completes a series of cases starting with Burlington Northern v. White (expanding what constitutes retaliation under Title VII) in the 2007 term, continuing with Gomez-Perez v. Potter (federal employees can sue for retaliation under ADEA) and CBOCS West, Inc. v. Humphries (Section 1981 also bars retaliation claims) from the 2008 term in which the Supreme Court has expanded and fortified retaliation claims.


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