EMPLOYERS BEWARE: A SUPREME COURT CASE REVEALS THE DANGERS OF GOING INTO WORKPLACE INVESTIGATIONS WITHOUT LEGAL COUNSEL
A unanimous United States Supreme Court decision highlights how critical it is for employers to seek legal advice when considering conducting internal workplace investigations. Questioned employees may inform investigators that they are being harassed on the job. Employees asserting such claims will now be subject to the same protections from retaliation by employers as those who file lawsuits for harassment. In fact, the Court’s decision leaves employers open to retaliation claims any time they fire employees who tell investigators about unlawful employment practices.
In Crawford v. Metropolitan Government of Nashville, the Metro School District conducted a workplace investigation into rumors that its Employee Relations Director, Hughes, was sexually harassing employees. Crawford, a long-time employee, informed the investigator that Hughes sexually harassed her. Metro took no disciplinary action against Hughes, and fired Crawford for alleged embezzlement.
Crawford filed a retaliation claim against Metro, claiming she was fired for reporting Hughes’ sexual harassment. In legal terms, she asserted that her employer retaliated against her for opposing an unlawful employment practice. The trial and intermediate appellate courts ruled in Metro’s favor, finding that Crawford could not claim retaliation protection because she did not initiate a complaint. She had merely answered an investigator’s questions in an already pending internal investigation.
The Supreme Court reversed. The justices concluded that an employee who tells an investigator about unlawful workplace harassment is protected from the employer’s retaliation. More broadly, the Court suggested that retaliation protection extends to any employee who speaks out about discrimination during a workplace investigation.
The Crawford decision underscores the importance of consulting an experienced employment attorney before, during and after workplace investigations. Before an investigation, counsel can advise whether an investigation should be conducted in the first place. If there is to be an investigation, counsel can frame the issues to be addressed and the questions to be asked. During an investigation, as data is gathered, counsel can review the data, analyze it and provide guidance as to how the employer should best proceed.
If Metro had sought legal advice before firing Crawford, Metro may well have not fired her. (Counsel could also have suggested how best to deal with Hughes.)
After an investigation, counsel can inform an employer of its array of options in dealing with its workforce, and make recommendations as to which to choose. With the right counsel by an employer’s side, many lawsuits can be avoided altogether.