Title VII and Internal Workplace Investigation

Major changes to the conduct of workplace investigations

If HR people know anything about sexual harassment allegations, it’s that you have to conduct a workplace investigation. Now, though, a case has come before the U.S. Supreme Court that could change the way you approach harassment in the workplace investigations – and make them a lot tougher to conduct, depending on how the court rules. Here’s the issue: Is an employee who hasn’t complained of harassment to any outside agency like the EEOC, but is only testifying in an internal workplace investigation, protected against retaliation?

Two sides to the coin

A federal appeals court said No. Now, the case is before the Supreme Court, and the government is supporting the employee. (She was fired after she told an internal workplace investigation team that a senior manager harassed female employees.)

When the lawyers presented the case to the high court in October, big risks on both sides came to light:

• If Title VII doesn’t protect employees in such situations, won’t people clam up whenever they’re asked to participate in an investigation?
• On the other hand, if Title VII does protect participants in internal investigations, won’t employers be stuck with the participants even if they later do something completely unrelated that deserves termination?

Document, document, document

A decision is expected in a few months. But what should you do between now and then? The answer won’t surprise you: Document everything. If you have to discipline any employee who has taken part in an internal investigation, make sure that you have ample written support for the decision.

Cite: Crawford v. Metropolitan Government of Nashville/Davidson County, No. 06-1595, Sup. Ct.