Consider Yourself a Retaliation Target

A recent U.S. Supreme Court ruling gives HR professionals cover.

By Rita Zeidner Mar 1, 2009
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March 2009 CoverIt didn’t take long for the relationship between Maggie Romance, SPHR, and executives at the Arizona company that hired her to sour.

The vice president of human resources’ troubles started soon after she came on board a decade ago and began examining notices she found stuffed in a drawer. The letters, from the Social Security Administration (SSA), listed employees whose names didn’t match their Social Security numbers. When none of the employees she sent to the SSA to sort out the discrepancies returned to their jobs, and no one was available to fill in, her boss gave her the cold shoulder.

Later, when she warned superiors of an unrelated tax problem linked to the company’s retirement plan, she was told to back off. After that, she was stripped of her major responsibilities and excluded from meetings she had previously been a part of. Before the end of her second year, her rapport with top managers was so strained she felt compelled to offer up a severance proposal, and the company accepted.

"My choices came down to keeping my mouth shut and participating in the problem; legal action, which could end a career; or negotiating a way out," said Romance, now organizational development director at an Arizona community college and a member of the Society for Human Resource Management’s (SHRM) Organizational Development Special Expertise Panel.

Compromising Positions

HR professionals may reasonably assume they get hired to help keep their employers on the right side of the law. Making recommendations is part of the job. But the possibility of landing in hot water for doing so may be the profession’s dirty little secret. "It happens every day," says Peter Eide, SPHR, a Columbia, Md., employment lawyer and a member of SHRM’s Special Expertise Panel on Ethics. "You’re telling line managers they can’t do something, and [those managers] don’t want to hear it because it makes their lives more difficult."

A former Bush administration appointee and one-time U.S. Chamber of Commerce lobbyist, Eide typically represents management in employment disputes. But he recently agreed to take the case of an HR manager who was fired after she told her company that it was legally required to accommodate an employee with multiple sclerosis. Eide, who also has the disease, says he’s in a position to recognize reasonable accommodation and was enraged when he learned of the employer’s response. "I am claiming this is retaliation," he says. "A winner? I think so."

The U.S. Supreme Court’s recent ruling in Crawford v. Metropolitan Government of Nashville and Davidson County, Tenn. (06-1595) may give some HR professionals who go head to head with management a legal edge. The ruling, decided Jan. 26, holds that a worker who told management about sexual harassment in her workplace and participated in an internal investigation was protected against retaliation, even though she didn’t file a formal complaint.

Vicky S. Crawford, the plaintiff, worked for 30 years as a payroll coordinator for the Nashville and Davidson County school system. In response to reports of inappropriate behavior concerning the organization’s employee relations director, Gene Hughes, management launched an investigation and in 2002 asked Crawford to participate.

Although she never filed a complaint, she told investigators that Hughes sexually harassed her and other employees. Among other allegations, she said he repeatedly asked to see her breasts and once grabbed her head and pulled it to his crotch. Hughes never was disciplined for his alleged behavior, but Crawford, and two other employees who also said they were harassed, were soon investigated on other grounds and fired. Hughes, meanwhile, resigned in 2003 after local news media reported inaccuracies on his resume.

Claiming the charges against her were trumped up, Crawford sued the city under the anti-retaliation provisions in Title VII of the Civil Rights Act of 1964. Reversing two lower court rulings, the high court decided that the act of telling management about Hughes’ behavior constituted opposition. Therefore, the court reasoned, she was entitled to anti-reprisal protections, noting that Title VII extends anti-retaliation protections in either of the following conditions.

The employee opposed any practice unlawful under the law, known as "the opposition clause."

The employee made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing under the law, known as the "participation clause."

A Silver Lining?

Many employers are disappointed by the Crawford decision––the fourth in a series of U.S. Supreme Court rulings during the last three years that expand legal protections for employees who complain about discrimination or sexual harassment on the job. Critics say these safeguards often are abused by poor performers and wrongdoers to shield themselves from discipline. Some, in fact, blame the rulings for a sharp rise in retaliation claims filed with the Equal Employment Opportunity Commission (EEOC). Today, retaliation cases are among the most common type of EEOC claim, second only to race discrimination. And they are the fastest-growing type of complaint being filed, up 18 percent from 2006 to 2007 and doubling since 1992.

The rapidly increasing number of retaliation complaints is especially alarming to employers considering that workers can win a retaliation case even if the original discrimination claim was bogus, says Albuquerque, N.M., attorney Whitney Warner of Moody &Warner PC.

By further expanding the scope of Title VII protections, some management attorneys claim, the Crawford ruling will likely give rise to even more retaliation suits. And it could motivate employers to rein in their investigations.

"Employers are going to have to think long and hard about who they interview as a witness," warned employment attorney Joel Rice of Fisher and Phillips LLP in Chicago.

But some legal experts say the Crawford decision is getting an undeserved bad rap. In addition to protecting employee witnesses, it could give additional cover to the unfortunate HR investigator working for a bad-apple employer. And, by protecting all workers against reprisal, it makes it easier for managers in good companies to root out bad behavior.

One can easily envision scenarios that could put an HR professional at odds with her boss. It could begin as the HR professional responds to a discrimination or sexual harassment allegation by simply asking a few employees what they know. Before the Supreme Court’s ruling in Crawford, the HR investigator could be in hot water if her boss didn’t want her snooping.

"An HR person who tells management what it does not want to hear is vulnerable," wrote University of Washington law professor Eric Schnapper, who argued Crawford’s case before the Supreme Court, in an e-mail. "I have seen HR people fired for that sort of thing."

The anti-retaliation protections the court extended to Crawford would seem to apply to the HR investigator whose boss takes umbrage after being notified that sexual harassment or some other type of illegal behavior is taking place, said Ann Steiner, Crawford’s lead attorney, in a telephone interview.

Avenging Retaliation

Crawford’s other supporters, who include the U.S. Justice Department and nearly two dozen state attorneys general, suggested that employers who sought to limit anti-retaliation protections were shooting themselves in the foot. If witnesses were reluctant to participate in investigations for fear of being punished, they argued, management would have a more difficult time ferreting out sexual harassment and other types of discrimination. The court agreed:

"If it were clear that an employee who reported discrimination in answering an employer’s questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses against themselves or against others," Justice David Souter wrote.

The court also dismissed management’s concerns that expanding the opposition clause would give risk-adverse employers—those who might be concerned about giving too many employees unlimited anti-retaliation protections––an excuse to narrow the scope of their investigations. Other decisions already give employers "a strong inducement to ferret out and put a stop to any discriminatory activity in their operations as a way to break the circuit of imputed liability," the court said.

Contrary to the concerns some management groups expressed in their briefs, expanding protections under Title VII’s opposition clause "makes effective investigation possible," says Dina Lassow, senior counsel for the Washington, D.C.-based National Women’s Law Center, one of several civil rights groups that had filed friend of the court briefs defending Crawford.

Moreover, there’s no longer an incentive for any worker, including an HR investigator, to go outside the internal investigative process simply to gain protections against retaliation, she adds.

As for Romance, sometimes, living well is the best revenge. She used the payment she negotiated as part of her severance agreement to jump-start an HR training business. And, she required her former employer to be her first customer.

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The author is senior writer for HR Magazine.

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