Supreme Court Considers Employee's Retaliation Claim

Woman Fired After Supporting Co-worker's Harassment Charge Gets Her Day in Court

October 1, 2008 -

ANNUAL SUPREME COURT REVIEW

OCTOBER TERM 2008

Each year, when the U. S. Supreme Court announces the cases it will hear for the term, Legal Momentum's experts scrutinize the docket for key cases where the Court's decisions could have important and lasting implications for women. The following article by Senior Staff Attorney Gillian Thomas concerns Crawford v. Metropolitan Gov’t of Nashville and Davidson County, Tennessee. Legal Momentum participated in an amicus brief on this case submitted on behalf of 32 women’s and employee-rights organizations.Through social science and other research, the brief documents the many reasons women keep silent about workplace harassment. The Court will hear oral argument on this case October 8, 2008.

This is the story of Vicky Crawford, a payroll administrator whose case will be argued October 8, 2008 before the Supreme Court: At a meeting with representatives of her human resources department, she learned that her boss had been accused of sexual harassment. The investigators asked Ms. Crawford what she knew. Reluctantly, she disclosed that the same supervisor had harassed her, too. She explained that she had not come forward previously because, under office policy, he was the person to whom she was supposed to complain. Within weeks, Ms. Crawford learned that her boss was reprimanded for "inappropriate behavior." But she also found out that her employer was investigating her job performance, and not long after, she was fired as were the other two women who spoke to the investigators.

Federal law makes it just as illegal for an employer to retaliate against someone who complains of discrimination as it is for an employer to discriminate in the first place. But what about employees like Ms. Crawford, who are reluctant to file their own complaints, but are willing to corroborate a co-worker's? Does the law protect them from retaliation, too?

Ms. Crawford says it does. Her former employer, which claims that Ms. Crawford was fired for no other reason than job performance, says it does not. The ban on retaliation, it argues, does not extend to witnesses like Ms. Crawford who merely give information instead of filing their own charge. The employer also says that participating in the investigation of an internal discrimination complaint, rather than a complaint filed with an outside agency, is not enough to trigger the law's protection.

Ms. Crawford is right. Research tells us that fear of retaliation is a main reason that employees keep quiet even in the face of severe harassment. (Indeed, Ms. Crawford says that her supervisor asked to see her breasts, pressed his crotch against her office window, pulled her head into his lap, and responded to a casual "what's up?" by grabbing his crotch and saying "you know what's up.") But don't take the social scientists' word for it: Ask any woman you know whether she's ever been harassed on the job. Chances are she has, and chances are she was too afraid to rock the boat by complaining.

A ruling against Ms. Crawford will send the message that unless an employee is prepared to file a formal complaint, she is better off keeping mum about discrimination. Even an employee who might feel brave enough to file her own complaint will think twice if she knows that her colleagues will be too afraid to corroborate her allegations.

The anti-discrimination laws succeed only when employees are willing to speak up about misconduct, whether directed against themselves or their colleagues. Unless employers can get answers about what really goes on in their offices or stores or factories, it is harder to root out and fix problem situations--not to mention prevent lawsuits. That's why Vicky Crawford and people like her need assurance that they won't be punished for disclosing what they know. Without that protection, employees have little incentive to report on-the-job discrimination, and every reason to keep silent.

Gillian Thomas is senior staff attorney at Legal Momentum, litigating in the area of employment discrimination.