Is Participation in An Internal Investigation Support a Retaliation claim under Title VII?
Employment lawyers generally inquire, was there an investigation? If an employer retaliates for an employee's participa- tion in an internal investigation where no EEOC charge has been filed, is there a retaliation claim under Title VII. In a case of first impression, the federal appellate court in New York says no in Grey-Allen v. Benjamin Enterprises, Inc., 09-0197-cv, 09-4509-cv (2d Cir. N.Y. May 9, 2012)..
Plaintiff Martha Townsend worked for BEI as office manager and First Impressions Director, or receptionist since June 2002. BEI trained disadvantaged or low- skilled individuals to work for local companies. Michelle Benjamin was BEI's President, her husband Hugh Benjamin, its vice president. Mr. Benjamin was also BEI's shareholder.
Ms. Townsend alleged that Mr. Benjamin sexually har- assed her from the Summer, 2003, making sexually of- fensive comments, propositioning her, touching her sex- ually and sexually assaulting her. On March 17, 2005, Ms. Townsend complained to BEI's HR Director Kar- lean Grey-Allen. Ms. Grey-Allen asked Ms. Townsend to provide an oral and written account of her allegations. Ms. Grey-Allen also spoke to the New York State Divi- sion of Human Rights, who suggested that she interview Mr. Benjamin and separate him from Ms. Townsend. Ms. Grey-Allen interviewed him and asked Mr. Benja- min to work from home.
Ms. Grey-Allen discussed Ms. Townsend's allegations with Dennis Barnett, who BEI retained as a management consultant to train Ms. Grey-Allen. When Michelle Benjamin learned of Ms. Grey-Allen's disclosure to Mr. Barnett, she fired Ms. Grey-Allen for breach confidenti- ality. Ms. Benjamin allowed her husband to return to work and hired an outside HR firm to investigate. That firm concluded that Ms. Townsend's allegations were baseless. On March 23, 2005, Ms. Townsend resigned stating that she could not "take it in the office" after Mr. Benjamin was permitted to return. Both Ms. Townsend and Grey-Allen filed an EEOC complaint, but no charge had yet been filed when Ms. Grey-Allen conducted her investigation or when she was fired. The lawsuit fol- lowed. The District Court granted summary judgment and dismissed Ms. Grey-Allen's retaliation claim.
Title VII prohibits an employer from retaliating against an employee who has "participated in any manner in an investigation, proceeding or hearing” and limits that pro- tected activity to that statutory "subchapter." Ms. Grey- Allen argued for an expansive reading of Title VII to cover internal investigations where no EEOC charge was filed. In an unusual step, the Court rejected the EEOC's "friend of the court" brief and argument; the Court re- fused to defer to that agency's interpretation that Title VII protects participation in an internal investigation of sexual harassment allegations unrelated to an EEOC charge. The majority held that the statute clearly ex- cluded internal private investigation; Judge Lohier con- curred in the result, but argued that "investigation" was ambiguous. Reviewing the legislative history, he con- cluded that Congress did not intend to cover private in- ternal investigations. He sought congressional clarifica- tion.
Title VII is a remedial statute designed to combat dis- crimination in the workplace. Will the Court's finding in this case both impede investigations and chill reporting of complaints? In other words, is this a trend that runs contrary to the congressional intent to provide a remedy for invidious discrimination? Read narrowly Ms. Grey- Allen was fired for violating confidentiality, not investi- gating Ms. Townsend's complaint. The case is not clear whether there was any written confidentiality policy. If "investigation" is ambiguous as Judge Lohier suggests, and includes private and internal investigations, should investigators be afforded something akin to immunity during investigation? The impact of this result remains to be seen, but the result in this case suggests the imple- mentation of clearly written personnel policies and well documented confidential investigations in the work place.