In its Jan. 26, 2009, decision in Crawford v. Metro Gov’t of Nashville,1 the U.S. Supreme Court unanimously ruled that employees are protected from retaliation under Title VII of the Civil Rights Act of 1964, as amended (Title VII),2 when reporting incidents of their own harassment while cooperating with an employer-initiated internal investigation of another employee’s discrimination complaint. Crawford has implications for employers conducting internal investigations of harassment where complaint procedures are meant to insulate them from, not expand on, liability for workplace harassment.
In 1998, the U.S. Supreme Court held in Faragher v. Boca Raton3 and Burlington Industries, Inc. v. Ellerth4 that employers are afforded an affirmative defense under Title VII to vicarious liability for discriminatory harassment by a supervisor that does not result in a tangible employment action if the employer can show it exercised reasonable care to prevent and correct alleged discriminatory conduct and the employee unreasonably failed to take advantage of the protective measures afforded by the employer.5 As a result, employers have increasingly investigated internal complaints of harassment brought under a complaint procedure in order to resolve disputes without legal action and avoid liability.
