Yikes! 2d Circuit Finds Title VII Does Not Protect Internal Investigators

Every internal HR investigator’s nightmare came true for HR Director Karlean Grey-Allen when she was allegedly fired in retaliation for investigating a receptionist’s allegations of harassment against the company’s vice-president (who happened to be married to the president of the company.)

The receptionist, Martha Diane Townsend complained to Grey-Allen that Hugh Benjamin sexually harassed her over a two year period.  Grey-Allen conducted an investigation after informing Benjamin he would have to work from home.  Grey-Allen discussed the complaint with a management consultant that had been hired by the company.  When the company president, Michelle Benjamin, found out that Grey-Allen revealed the investigation to the consultant, she terminated Grey-Allen.  At this point, no EEOC charge had been filed. (Townsend later sued and won a jury verdict back in 2008 for $30,000.)

Grey-Allen sued for retaliation.  Makes sense, right? Well, the Federal Court for the Southern District of NY dismissed Grey-Allen’s claims holding that Title VII does not protect against retaliation arising from an internal investigation that occurred before any EEOC proceedings were initiated.  The Court reasoned that Grey-Allen did not participate in protected activity under the participation clause of Title VII’s anti-retaliation provision.

Now I have read Title VII and, well, the Court is correct, although the law doesn’t make sense when you think about what the retaliation provision is really intended to protect – participation in any proceeding – internal or external. But, that is not the reality.

Some of you may actually be scratching your head and thinking back to the U.S. Supreme Court’s decision in Crawford v. Metro. Gov’t of Nashville & Davidson Cnty. If you remember that case, Crawford participated in an internal investigation and noted to the investigator that she had experienced the same harassment from the alleged wrongdoer.  The Court found that Crawford had opposed a practice – namely the harassment of her boss.  I always thought the Court cheated us by not discussing why that case didn’t fall under the participation clause.

Back to Grey-Allen. On Appeal, the Court said the participation clause concerns the EEOC’s enforcement powers and investigations procedures. So, Grey-Allen is out of luck and is afforded no protection. One of the Appellate Judges actually noted it was unfortunate that Title VII did not protect internal investigators.

As investigators, all we can do is the best we can do. And, hope that state law provides protections where Title VII fails.

Martha Diane Townsend et al v. Benjamin Enterprises et al, U.S. Court of Appeals for the 2nd Circuit, No. 09-197.

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One Response to Yikes! 2d Circuit Finds Title VII Does Not Protect Internal Investigators

  1. Interesting. The Eleventh Circuit had a similar brush with this issue. It withdrew its opinion that internal investigations were not protected conduct and substituted the opinion found here (http://www.ca11.uscourts.gov/opinions/ops/200613073OPN2.pdf) that skipped that issue in lieu of affirming the lack of pretext. The issue of what internal investigations are and are not under Title VII, pre-Charge, post-Charge, or during a tangential Charge, is ripe.

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