Retaliation Review

Believe it or not, the waste industry is affected as much or more by court rulings that concern all segments of the business community than by decisions that directly address such issues as waste handling or facility siting.

The current term of the U.S. Supreme Court, which began in October, likely won't have the drama of the last term, when the high court dealt with gun control, Guantanamo prisoners and the death penalty. Nevertheless, the justices will be hearing many cases with implications for business and the environment.

Among the cases to watch is Crawford v. Metropolitan Government of Nashville (Docket No. 06-1595), where the court will decide if the anti-retaliation provision in Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) protects an employee who is fired because she cooperated with the employer's internal investigation of sexual harassment. Employees have fared well in recent retaliation cases. Last term, the justices ruled that federal employees could sue for retaliation under the Age Discrimination in Employment Act and that 42 U.S.C. § 1981 gave workers an implied cause of action for retaliation.

The Crawford case focuses on the "participation" and "opposition" clauses in Title VII, which forbid employers from discriminating against employees who have opposed an illegal employment practice, or who have participated in a related investigation or hearing by testifying or otherwise assisting in the proceeding.

Vicky Crawford, a 30-year employee of the Metro School District, was fired after she participated in an internal investigation of sexual harassment complaints against the district's employee relations director. The district's investigator interviewed Crawford and other employees who had worked with the director.

According to court documents, she told the investigator that the director had sexually harassed her and other employees. Relating her own experience, she said "[he] would come to my window and ask to see my [breasts]. He would grab his crotch and state, ‘You know what's up.'" On one occasion, Crawford testified, he came into her office and after she asked him what she could do for him, he grabbed her head and pulled it into his crotch. She testified about making it clear that she strongly objected to this behavior, telling him to "get the hell out of my office."

The investigator concluded that the director had acted improperly, but no disciplinary action was taken against him because no witnesses corroborated the allegations involving sexual references. Each of the victims was alone with him at the time of the alleged harassment.

Two months after the investigation concluded, Crawford was suspended after a formal investigation of alleged irregularities in her office, and she was fired shortly thereafter. Two other employees who participated in the investigation were fired as well.

Crawford filed suit in federal district court alleging she was illegally discharged in retaliation for her participation in the investigation. The district court dismissed her complaint, ruling that an employee who has been sexually harassed gets no protection under the law against employer retaliation unless she or someone else has formally filed a charge. A federal appeals court agreed.

Management lawyers worry that a reversal by the Supreme Court would insulate underperforming employees from disciplinary action or dismissal just because they took part in an internal probe. The justices heard oral argument in the case in early October. A decision is due by late spring. The waste industry, along with the rest of the business community, will be paying close attention.

Barry Shanoff
Legal Editor
Rockville, Md.