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Participating in an Employer's Internal Investigation Protected from Retaliation

September 21, 1999
Related Topics: Wrongful Discharge, Discrimination and EEOC Compliance, Featured Article
Issue: During a clerk’s required attendance at a meeting with human resources and the employer's legal counsel, the clerk was told that her employer was investigating allegations of sexual harassment made by another employee against a supervisor. The meeting was part of the employer's internal investigation, conducted in response to an EEOC notice of a separate charge of discrimination. The clerk answered questions regarding the office interactions between the other employee and the supervisor. Four days after attending the meeting, the clerk was terminated, purportedly for giving false information about why she was late to the meeting.

As HR director, you know that reprisals against employees who have filed a charge or testified, assisted, or participated in any manner in an investigation, proceeding, or hearing are prohibited. That part of the retaliation provision relating to this kind of activity is known as the "participation clause." Does the clerk's conduct during the meeting qualify as protected conduct under the "participation clause" of Title VII of the Civil Rights Act of 1964?

Answer: Most likely. By participating in her employer's internal investigation—an investigation that was conducted in response to an EEOC notice of charge of discrimination—the clerk engaged in statutorily protected conduct under Title VII's participation clause, according to the 11th Circuit Court of Appeals. An employee's participation in an internal investigation counts as participation in the EEOC investigation, "at least where an employer conducts its investigation in response to a notice of charge of discrimination, and is thus aware that the evidence gathered in that inquiry will be considered by the EEOC as part of its investigation," reasoned the court.

Cite: Clover v. Total Systems Services (11thCir 1998) 74 EPD 45,606, 157 F3d 824; vac’d (11thCir 1999) 75 EPD 45,802; on petition for reh'g (11thCir 1999) 75 EPD 45,890.

Note: In its 1998 opinion, the 11th Circuit held that the "participation clause" protects an employee from retaliation only in cases where the employee participates in an investigation conducted by the EEOC or its designated representatives. In other words, the court narrowly interpreted the scope of Title VII’s participation clause to hold that the clause does not cover an employee’s involvement in an employer’s internal discrimination investigation. However, on rehearing, the court said its previous opinion was in error because it focused exclusively on whether or not the employee was participating in an EEOC investigation.

What should you do?

  • Avoid unequal treatment.
    Employers should take care to treat employees participating in Title VII proceedings on behalf of discrimination claimants the same as individuals who participate in such proceedings on behalf of the employer.

    Example: A U.S. Postal Service policy of paying employees who testified on behalf of the government while denying paid leave to employees who testified for the party opposing the government was held to be unlawful because of the "chilling effect" the practice had on those who participated in Title VII proceedings on behalf of charging parties.

    Cite: Stup v. Bolger (EDVa 1984) 36 EPD 35,011, 578 FSupp 1394; Davis v. Bolger (DDC 1980) 23 EPD 31,151, 496 FSupp 559.
  • Establish an independent basis for discipline.
    The ban on retaliation for participation in Title VII proceedings does not prevent an employer from disciplining an employee when discipline is warranted. However, discipline can never be based on an employee’s participation in protected proceedings. Since unlawful motive is the key, employers must be careful not to create an appearance of unlawful motive.

    Example: A male sales representative who involuntarily testified that he had sexually harassed a female receptionist was protected by Title VII’s anti-retaliation provision. Because there was direct evidence that the sales rep’s testimony was the reason he was fired, an appeals court revived the sales rep’s lawsuit for retaliation. In order to determine what action to take against five employees accused of sexually harassing the receptionist, the company president reviewed all deposition testimony, but did not undertake an independent investigation. The company president also told the sales rep that "your deposition was the most damning to [the employer’s] case, and you no longer have a place here."

    The 11th Circuit stressed that its decision was not intended to prohibit imposing discipline on an employee who sexually harasses other employees. Direct evidence of retaliatory motive made the case a rare exception. Absent such evidence, the appeals court said that summary disposition in the employer’s favor should be the rule.

    Cite: Merritt v. Dillard Paper Co (11thCir 1997) 71 EPD 44,977.
  • Don’t try to limit participation rights.
    Promises not to file a charge or participate in an EEOC proceeding should not be included in agreements such as contracts requiring the use of alternative dispute resolution procedures, waiver agreements, employee handbooks, employee benefit plans, and noncompete agreements. Such promises are generally not enforceable; they may also amount to separate and discrete violations of the anti-retaliation provisions of the civil rights laws.

    Example: Settlement agreements that prohibited individuals who had complained of sexual harassment from aiding the EEOC in its investigation of class-wide improprieties were void as against public policy. However, provisions banning the individuals from filing EEOC charges were upheld; they did not irreparably harm the EEOC’s investigation of existing charges.

    Cite: EEOC v. Astra USA Inc. (1stCir 1996) 68 EPD 44,220, 94 F3d 738.

Source: CCH Incorporated is a leading provider of information and software for human resources, legal, accounting, health care and small business professionals. CCH offers human resource management, payroll, employment, benefits, and worker safety products and publications in print, CD, online and via the Internet. For more information and other updates on the latest HR news, check our Web site at

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.

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