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Cooperative Workers May Not be Fired in Retaliation

By Kristopher A. Nelson in

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From the New York Times:

Employees fired after cooperating in sexual harassment investigations may sue for retaliation, the Supreme Court ruled Monday in a case concerning the scope of a federal law barring sex discrimination in the workplace.

If it seems obvious that a worker who cooperates with an investigation that reveals sexual harassment by her supervisor should be protected from retaliatory firing by the employer as a result of that cooperation—well, it wasn’t obvious to everyone! The 6th Circuit had ruled otherwise, for example.

What was the behavior of the supervisor at issue?

According to court papers summarizing her accusations, Mr. Hughes seemed to think it amusing to grab his genitals and ask Ms. Crawford to show him her breasts.

At the conclusion of the investigation, Mr. Hughes received an oral reprimand. Ms. Crawford and two other women who had made accusations against him were fired.

The employer argued that because Ms. Crawford had only “cooperated,” she was not entitled to the statutory protections under the retaliation prohibition found in section 704(a) of Title VII, 42 U.S.C. §2000e-3a (2007), since it prohibits retaliation for having “opposed” discrimination. In other words, “cooperation” was not “opposition,” and thus was not protected under the statute.

From the opinion:

“Nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question,” Justice David H. Souter wrote for the court.

See also:

Disclosure Note: My Employment Discrimination professor, Eric Schnapper of the University of Washington School of Law, worked on this case on the plaintiff’s behalf.