Michelle Patrick Labor and Employment Law Blog on Lawyers.com

My name is Michelle Patrick, and I am one of five Philadelphia employment attorneys at Nancy O'Mara Ezold, P.C.; I focus my practice on assisting employees who have suffered discrimination in the workplace. My goal in this blog and my future blogs is to try to educate you and provide you with some insight into the reality of discrimination in the workplace and the handling of discrimination issues by the Courts.

In this day and age most women never think that they will be the victim of sexual harassment. We either believe that sexual harassment doesn’t really happen anymore, or that if won’t happen to us. Unfortunately, when an employee does become the victim of sexual harassment, they try to ignore it or not report it out of fear - fear of being seen as a troublemaker and being treated as such, fear that the employer will take no action or fear of losing a job.  Fear of losing a job is particularly concerning in light of today’s economy.  In addition, often the victim of sexual harassment feels further victimized when the employer takes no action against the harasser (leaving the victim feeling as if the employer won’t validate their feelings and the reality of the situation).  We have handled many cases in which the employer not only fails to cure the sexual harassment, but retaliates against the victim. Many victims have seen this happen to other employees who complain and are even more reluctant to speak up because they believe management will make their lives more difficult.  As we’ll see, not only are you protected against retaliation when you complain of sexual harassment or employment discrimination, but you are protected even if you only serve as a witness in an employer’s investigation.

The United States Supreme Court recently decided the case of Vicky Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee; 129 S. Ct. 846; 172 L. Ed. 2d 650 (S. Ct. 2009).  Crawford is a case involving the alleged sexual harassment of an employee who did not come forward and report any harassment.  Vicky Crawford was a 30 year employee of the Metro School District located in Tennessee.  She was allegedly sexually harassed by the school district’s Employee Relations Director, Gene Hughes, but did not report the harassment. After another co-worker made sexual harassment allegations against Mr. Hughes, the school conducted an investigation and questioned Ms. Crawford as to whether she had ever witnessed any harassment.  Ms. Crawford revealed that in fact, she believed she had also had been sexually harassed by Mr. Hughes.  The examples that she provided the school district alleged that 1) in response to her greeting Mr. Hughes with “Hey what’s up?” he had grabbed his crotch and purportedly responded by saying “[y]ou know what’s up;” 2) Mr. Hughes repeatedly “put[ting] his crotch up to [her] window;” and 3) he had entered her office and “grab[bed] her head and pull[ed] it to his crotch.” As a result of the employer’s so-called investigation, rather than take any action against the alleged harasser, Mr. Hughes, the School District fired Ms. Crawford!

Ms. Crawford sued the school district alleging that she had been terminated in retaliation for participating as a witness in an internal investigation where she alleged sexual harassment.  Both the Tennessee District Court and the Sixth Circuit Court of Appeals found that there was no protection for Ms. Crawford against retaliation.  Ms. Crawford appealed to the United States Supreme Court which held that Title VII’s anti-retaliation provision, which contains an opposition and a participation clause, does protect individuals who speak out regarding discrimination as part of an investigation rather than by making their own claim. The Supreme Court remanded the case to the Sixth Circuit which, as of the writing of this blog, has not yet made a decision in this case.

The result here seems patently obvious - an employee who cooperates with her employer and tells the truth about being the victim of sexual harassment should not lose her job and should be protected from retaliation by her employer.  Arguably the Supreme Court also thought the answer was obvious or it would not have granted certiorari to hear the case and it would have allowed a very troubling decision to stand - setting a horrible precedent.  Instead, Crawford has put employers on warning that they cannot retaliate against employees who are witnesses in an internal investigation of sexual harassment or employment discrimination.