Retaliation for Participating in an Investigation, Quirky Question # 65

Quirky Question # 65:

Our company has made concerted efforts to encourage our employees to report incidents of possible discrimination.  Our HR Department is responsible for receiving and investigating discrimination complaints.  Through our internal investigation efforts, we have been able to head off possible litigation and address potentially serious problems.

On the flip side, however, the internal investigation process has given rise to some personnel management issues.  Just recently, for example, an employee with existing performance issues was interviewed in connection with an internal investigation.  She provided information corroborating another employee’s discrimination complaint.

Last week, the manager of the employee who was interviewed approached HR about terminating the employee because of her performance issues.  The manager is adamant that this employee must be discharged.  HR, however, is concerned that terminating her now, just weeks after she provided troubling information during an internal discrimination investigation, might be considered retaliatory.  Complicating the issue, the manager who is insisting on firing her is good friends with the person about whom she provided damaging information.  Maybe this just was coincidental.

It appears that the employee’s performance problems are fairly well documented and support a termination decision.  Can we go ahead with the termination without violating the laws against retaliation?  Would it be better to let more time pass before we terminate her?  Do we need to treat employees with “kid gloves” once they participate in investigations, or are we safe to proceed with business as usual?  Help!

Dorsey’s Analysis:

The circumstances you find yourself in are increasingly common for employers these days.  Internal efforts to investigate and address discrimination complaints are often rewarded with retaliation claims by the complaining employee or persons who provide information that is not helpful to the company’s position in the course of the investigation.  Often times, an employer’s most significant potential liability lies not with the underlying complaint that spurred the investigation, but rather with retaliation claims brought by the complainant resulting from his or her treatment following the complaint.  Occasionally, retaliation claims are brought by someone who participated in the investigative process.  The ever-present prospect of such claims presents the employer with difficult challenges requiring thoughtful and careful management.

As an initial matter, the proliferation of retaliation claims might lead an employer to conclude that it would be better off if it did not thoroughly investigate discrimination or harassment claims.  That would be a big mistake.  Having in place an effective mechanism for identifying, investigating and addressing instances of potential harassment and/or discrimination is a critical step in both limiting an employer’s exposure to litigation – as your company’s experience reflects – and defending against claims if litigation ensues.  The “Faragher and Ellerth” affirmative defense, delineated by the Supreme Court in 1998 through two companion cases (Burlington Indus., Inc. v. Ellerth and Faragher v. Boca Raton), allows an employer to avoid hostile work environment liability where (1) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) the plaintiff employee unreasonably failed to take advantage of any protective or corrective opportunities provided by the employer or to avoid harm otherwise.  The availability and application of this affirmative defense present a myriad of fact-based and legal issues beyond the scope of this analysis.  For present purposes, it suffices to say that all employers would be wise to implement and effectively communicate discrimination and harassment policies; train employees on the policies; establish effective internal complaint procedures; promptly and thoroughly investigate complaints of sexual and other harassment; and take appropriate remedial action when warranted.

Turning to the situation you have described, your HR folks are right to be concerned about a potential retaliation claim if you proceed with termination.  That is not to say that the employee’s participation in the discrimination investigation should serve to insulate her from disciplinary action, including termination, based on her poor performance.  But extra care must be taken to ensure that you can defend the termination decision, particularly in light of the relationship between the manager pushing for the termination and the individual about whom the employee provided damaging information.  There are several, additional pieces of information I would like to know before providing any definitive advice as to this employee’s potential termination.

First, what does the manager know about the internal investigation?  Does he know that the employee was interviewed?  Does he know what the employee said, or that she provided damaging information regarding his friend?  Has the manager spoken with his friend, the target of the investigation, regarding the results of the investigation?  Who within the company is privy to the results of the investigation?  If you proceed with the termination, your ability to defend against a retaliation claim will be enhanced if you can demonstrate that the manager was isolated from the investigation and that he had no knowledge of the information provided by the employee.

Second, have other employees reporting to this manager participated in the investigation and, if so, have any of them provided damaging information?  Assuming that other employees under this manager have been involved, are they the subject of any active or potential disciplinary action based on their performance?  The fact that others who participated in the investigation, including some who conveyed damaging information, have not faced disciplinary action should help demonstrate that the termination decision was prompted by the employee’s poor performance and not her participation in the investigation.

Third, has this manager and the company as a whole been consistent in dealing with the kinds of performance problems underlying the current termination recommendation?  Will the employee be able to point to others with similar performance issues who have not been terminated or subjected to disciplinary action?  If there are such similarly situated employees, what work-related factors distinguish their situations from that of this employee?  If it appears that the company has accorded others more favorable treatment, such as a greater opportunity to correct their poor performance, terminating this individual’s employment on the heels of her participation in the discrimination investigation may well be construed as retaliatory.

Fourth, are the performance shortcomings underlying the termination recommendation objectively verifiable?  Here, as in other situations, disciplinary decisions premised on objective performance criteria – e.g., sales goals, productivity measures, etc. – are easier to defend than actions based on purely subjective performance assessments.

Fifth, do other management personnel support the termination recommendation?  This gets to who owns the termination decision within the organization.  The broader the support for termination, the more difficult it will be for the employee to establish the necessary causal relationship between the termination decision and her sharing damaging information about her manager’s friend.  In a situation such as yours, where the manager recommending termination is a good friend of the person about whom the employee provided damaging information, it would be prudent to have another manager with knowledge of the functional area review the employee’s situation and make an independent disciplinary recommendation.

Sixth, are there any facts that tend to suggest that the timing of the termination decision is suspicious?  For example, if the employee’s performance should have resulted in her termination one or two months ago, prior to her participation in the discrimination investigation, why didn’t the manager go forward with the termination at that time?  What has occurred in the interim that demonstrates that this is a performance-based decision and not retaliatory?

All of these questions are geared toward identifying potential weaknesses that might be exploited at a later date by the terminated employee’s lawyer.  If the information you have gathered after considering these issues warrants immediate termination, then the fact that the employee recently participated in a discrimination investigation should not dissuade you from that course of action.  Treating the underperformer with “kid gloves” merely because she participated in an internal investigation is not a good idea.  It sends the wrong message to your workforce and sets a poor precedent that will only serve to make it more difficult to effectively manage your business and employees.  If, on the other hand, potential problems surface in response to these inquiries, it may  be more prudent to continue or impose disciplinary action short of termination.

Given the nature of your questions, you will be interested in the outcome of a case now before the Supreme Court.  In Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, the Supreme Court has been asked to assess whether the anti-retaliation provisions under Title VII extend protection to employees who participate in an employer’s internal investigation.  Crawford was fired shortly after she was interviewed as part of an investigation of another employee’s sexual harassment complaint.  In the interview, Crawford told the company investigator that she, too, had been sexually harassed by the school district’s employee relations director.  The Sixth Circuit affirmed the dismissal of Crawford’s retaliation claim, concluding that participation in a purely internal, in-house investigation, in the absence of any pending EEOC charge, is not a protected activity under Title VII.   The Sixth Circuit also concluded that merely cooperating with the employer’s investigation by appearing for questioning, and relaying unfavorable information in response to the questions posed, does not constitute the type of over opposition to prohibited conduct required to trigger Title VII’s protections against retaliation.  The court reasoned that the fear of potential retaliation claims by every person interviewed as part of an internal investigation would dissuade employers from conducting thorough, internal investigations.

The Supreme Court heard oral argument in the Crawford case on October 9.  A decision is anticipated in the near future so stay tuned.

Dorsey & Whitney

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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