Retaliation (again), Quirky Question # 136

Quirky Question # 136:

I know you’ve written a number of analyses of retaliation claims, but our company has a new twist to this subject.  One of our employees filed a Charge of Discrimination with the Equal Employment Opportunity Commission, claiming sex discrimination.  In her Charge, she identified several other employees, none of whom has ever complained about any unfair treatment.  One of the employees identified in the Charge recently claimed that we retaliated against her.  However, she had never even complained about any unfair treatment, let alone filed a Charge.  We understand that we cannot take adverse action against someone who “participates” in an investigation or who “opposes” discrimination.  But, this employee did neither.  She was just listed as a knowledgeable person on a Charge.  I presume that the anti-retaliation do not go this far.  Do they?

Dorsey’s Analysis:

Like your company, courts continue to grapple with the scope of the anti-retaliation provisions contained within the federal and state anti-discrimination statutes.  As you may know, however, those statutory provisions are written broadly.  When combined with the fundamental purposes of the statutes – prohibiting discrimination and retaliation – courts often are inclined to intepret these provisions expansively.

For example, Title VII’s anti-retaliation provision states: “It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants . . . because [the employee/applicant] has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this subchapter.”  Sec. 2000e-3.  As you reference in your question, this prohibition encompasses both an “opposition” and a “participation” component.

As you note, it does not appear that your employee who was listed as a potential “witness” in the Charge filed by her co-worker has done anything to “oppose” a discriminatory practice.  Further, as you stated, she herself did not file a Charge of Discrimination, or even complain about any unfair treatment.  Thus, it would appear on the facts you briefly recounted that your employee will not be able to avail herself of the “opposition” clause of the statute.  [For a discussion of last year’s Supreme Court Crawford decision, which focused on the opposition clause issue, use the “View By Topic” tab on the upper-left-hand side of this page and scroll down to “Retaliation.”  You will find the discussion of Crawford, along with the discussion of other retaliation contexts, in that section.]

Parsing through the other specific statutory proscriptions (“made a charge”, “testified,” or “assisted”) these provisions would not lend support to your employee that she has engaged in protected activity.  The key question, therefore, is whether your employee can avail herself of the “participation” clause of the statute.  As you can see from the material quoted above, that clause prohibits retaliation against a person who has “participated in any manner in an investigation, proceeding or hearing . . ..”  (Emphasis added.)

Presumably, your employee will contend that by being named in her co-workers’ Charge of Discrimination, she “participated” in some manner in the investigation.  Conversely, your company will presumably take the position that a passive reference to an individual in a Charge, without more, does not entitle the referenced employee to claim the protections of the anti-retaliation provision.  Unfortunately for your company, as explained further below, your employee may have the more persuasive argument.

Before discussing the arguments your employee likely will advance, let me highlight a few of the factors that may strengthen or weaken your company’s position.  Did your company know that this employee had been named as a witness in her co-workers’ Charge?  Presumably, since the EEOC sends the Charge out to accused companies, at some point your company was (or will be) informed.  If, however, the supposed adverse action (whatever it may have been) occurred before the information was provided by the EEOC to your company, your company’s position will be enhanced.

In addition, even if your company received the notification from the EEOC and was aware of the co-worker’s inclusion in the Charge, who within your company knew this fact?  Often, the Charge of Discrimination is sent to the President or CEO of the affected company.  From there, it typically is provided to the VP of Human Resources or some other employee with equivalent authority.  If this information was not shared with the person your employee is accusing of retaliatory conduct, again your company’s position will be significantly enhanced.

The content of the Charge also may bear upon the issue of your company’s potential liability.  Did the Charging Party characterize her co-worker as a “supportive” witness or a person who could “corroborate” her allegations?  If so, did that cause anyone within your company any consternation?  Did anyone speak with the identified employee to find out what she knew?  Did anyone express any concerns about the fact that she had been listed in the Charge?  Did anyone attempt to ascertain whether she had any concerns about discriminatory treatment, either toward herself or others?  Did anyone at your Company express the sentiment that the Company hoped she would cooperate in defending against the Charge, or even worse, state or imply that she would suffer adverse consequences if she failed to assist the Company?

As you likely already have deduced, the identification of an employee on a Charge of Discrimination puts a company in somewhat of a quandry with respect to the issue of potential retaliation claims.  In most instances, a company will want to systematically and thoroughly interview each of the individuals listed in the Charge.  Yet, once those individuals have been interviewed, the employees will have to be treated carefully, especially if any of them are being subjected to any disciplinary action of any kind.  Clearly, a person who has been interviewed as a result of having been named in a Charge will be deemed to have “participated” in an investigation and will protected by the participation clauses of statutory anti-retaliation provisions.  And, if the employee has expressed any criticisms of the company, or accused it of discriminatory conduct, or contended that she too has suffered discrimination, the company will need to take particular care with regard to this employee if it wishes to avoid any claim of retaliatory conduct.

As you can see, there is a spectrum, reflecting the types of interaction your Company may have had with the employee identified in the Charge.  At one end of the spectrum is: No Knowledge by the Decision-Makers; at the other end of the spectrum is Knowledge Coupled with Adverse Action.  The closer your Company is to the former, the better; the closer you are to the latter, the more problematic.

Of course, the mere fact that somone may be listed as a knowledgeable individual on another employee’s Charge of Discrimination does not a retaliation case make.  Your company would have to have taken some adverse action toward this employee after learning of her listing on the Charge – some negative change in the terms or conditions of her employment.  The fact pattern described above does not address that issue at all, so we will not comment on this point other than to state that the mere fact that an employee has “opposed” a discriminatory practice or has “participated” in an investigation, proceeding or hearing does not mean the employee is forever after untouchable.  A company may take appropriate disciplinary action against an employee, up to and including termination, if warranted and if not linked to the protected activity in which the employee engaged.  For example, even if an employee provided inculpatory information in connection with a sexual harassment investigation, if that same employee brought a rocket propelled grenade to work the next day, he or she should be fired.  We doubt that you would have much difficulty persuading the fact-finder that the discharge stemmed from the fact that the employee brought a weapon to work, and was not grounded upon the damning testimony.  (On the other hand, if other employees previously had brought RPGs to work without consequence, your discharge decision would be more difficult to justify.)

A recent case out of the federal District Court in Arizona touched on some of the issues presented by your question.  In EEOC v. Creative Networks LLC, No. 2:05-cv-03032 (D. Ariz. Jan. 15, 2010), the federal court grappled with the issue of whether the identification of an employee in a Charge of Discrimination, and the adverse conduct she claimed was then directed at her, was encompassed by either the opposition or participation clauses of the anti-discrimination statute.  Although the Court found that the employee had not “opposed” any discriminatory conduct and therefore could not make out an opposition claim, the court found that she was protected by the “participation” clause, a conclusion that caused the Court to deny the defendant’s Motion for Summary Judgment.

As the Court noted, the EEOC argued that both that the “plain language” of Title VII’s retaliation provision broadly protects assistance or participation “in any manner” and that without protection, employers could intimidate witnesses identified in Charges of Discrimination, which could deter them from participating in investigations.  The Court found these arguments persuasive.

As the District Judge observed, the Supreme Court had admonished: “We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.”  Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992).  [I don’t know whether the Supreme Court cited to Dr. Suess for this proposition, but if not, it should have.  See, Horton Hatches An Egg.]  Further, the Court stated that “the explicit language of the participation clause offers broad protection to Title VII claimants.”  Although the precise issue presented in the Creative Networks case had not been addressed by the Ninth Circuit, the District Court emphasized that a number of circuit courts had given the anti-retaliation provision of Title VII an expansive interpretation, citing, Hashimoto v. Dalton, 118 F.3d 671, 680 (9th Cir. 1997) (initiating complaint with EEOC counselor is protected activity);and, Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 174-75 (2d Cir. 2005) (employee named as witness in deposition but who never testifies engages in protected activity).

Moreover, as referenced above, the Creative Networks court analyzed the specific issue in the broader context of the statute as a whole and its overall purpose. Citing to last year’s Supreme Court’s Crawford decision, the court stressed, “prudent employees would have a good reason to keep quiet about Title VII offenses against themselves or against others” if an employer could punish employees who reported discrimination without remedy.  Adopting a variation of this analysis, the Creative Networks court concluded: “Without the protection of Title VII, witnesses named in EEOC charges could be intimidated into not testifying or supporting a co-worker’s discrimination claims.  Title VII prosecutions would be chilled because witnesses would be afraid of retaliation by their employers.”

What then are the takeaways from this analysis?

First, if an employee is named as a witness in a Charge of Discrimination, the prudent course is to assume that he or she is protected by the “participation” clause of Title VII’s anti-retaliation provision.

Second, certainly once a company makes a decision to interview those identified in a Charge of Discrimination, the persons interviewed will have “participated” in the investigation.

Third, the individuals conducting the investigative interviews should be sure to stress that the interviewees will not be retaliated against in any way.

Fourth, if the interviewee provides testimony or other information suggesting that he or she is also a victim of discriminatory conduct, a separate investigation should be conducted into those allegations.

Fifth, particularly if the interviewee provides corroborating testimony relating to the allegations of the initial Charge or provides information identifying other types of discriminatory conduct directed at herself or others, the company needs to recognize that it is not “business as usual” with regard to any potential adverse actions directed at that employee.  Such actions, particularly if they are in temporal proximity to the interview, will invariably lead to a retaliation claim.

Finally, even if an employee provides critical information about a company and its discriminatory and/or retaliatory conduct, that does not mean the employee is untouchable.  If the employee engages in wrongful conduct, the company can take appropriate disciplinary action.  But, ensure that the company’s response is based on the wrongful conduct and not the provision of critical testimony.  Be prepared to explain clearly why the explanation for the adverse job action is not merely a pretext or cover-up for discriminatory or retaliatory conduct.

Dorsey & Whitney

Dorsey is a business law firm, applying a business perspective to clients' needs. We make it our first priority to know the context in which you do business - your market, your competitors, your industry.

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