Participation clause allows employer to fire HR manager for investigating in-house sexual harassment complaint

The Second Circuit has held that Title VII's participation clause does not prevent an employer from retaliating against a human resources manager who vigorously investigated an internal sexual harassment complaint. The participation clause does not kick in until the sexual harassment victim files a formal charge with the EEOC.

The case is Townsend v. Benjamin Enterprises, decided on May 9. I wrote about a different holding in Townsend here. This time around, I am writing about the second plaintiff, Grey-Allen, who investigated Townsend's sexual harassment complaint. Grey-Allen was fired by the harasser's husband before she completed the investigation, and sued under Title VII's anti-retaliation provision, the "participation clause." I represented Grey-Allen in the district court and on appeal.

The district court granted summary judgment. The Court of Appeals (Livingston, Lohier and Koeltl [D.J.]), affirms. The participation clause reads as follows:

Section 704(a) of Title VII contains both an opposition clause and a participation clause, making it unlawful for an employer to retaliate against an individual “because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 4 2000e-3(a).

What is "an investigation ... under this subchapter?" With support from the EEOC, Grey-Allen argued that "under this subchapter" means any sexual harassment investigation, particularly one conducted pursuant to the court-created requirement that management promptly investigate any in-house sexual harassment complaint. For the most part, sexual harassment complaints cannot go the EEOC as a formal discrimination charge unless the plaintiff complains about the hostile work environment pursuant to corporate procedure. The Court of Appeals disagrees, interpreting "an investigation ... under this subchapter" to mean formal charges with the EEOC.

An “investigation ... under this subchapter” thus plainly refers to an investigation that “occur[s] in conjunction with or after the filing of a formal charge with the EEOC; it does not include participating in an employer’s internal, in-house investigation, conducted apart from a formal charge with the EEOC.”

 ...

While the Faragher/Ellerth affirmative defense creates an incentive for employers to conduct internal investigations in order to show that they have met the first prong of this defense, it does not impose an obligation on employees to participate in such investigations as a necessary prerequisite to bringing a discrimination claim under Title VII. Faragher and Ellerth do not provide a basis for bringing internal investigations not associated with a formal EEOC charge “under this subchapter” within the language of the participation clause.

This was an issue of first impression for the Second Circuit, but it follows the reasoning of the other Circuit courts that have taken up this issue. A few years ago, the Supreme Court took up this precise issue, but resolved the Title VII case under the opposition clause, not the participation clause.

Judge Lohier's concurrence agrees with the majority's reasoning, but he points out that "[t]here was strong evidence that it fired Grey-Allen for no reason other than that she conducted an effective internal investigation of a sexual harassment claim against a corporate vice-president." He adds that "[a]s a policy matter, however, the distinction between investigations in which the government is involved and internal investigations strikes me as antiquated and arbitrary. The facts of this case starkly illustrate the arbitrariness. Had Grey-Allen conducted her investigation under the auspices of a government agency such as the EEOC, her actions would have been protected under the participation clause. But because she conducted the same internal investigation without EEOC involvement, her actions are not protected." For this reason, Judge Lohier says, "Congress should act to clarify Title VII if it desires to prohibit private employers from retaliating against employees merely because they participate in internal investigations of discrimination complaints prior to any involvement by the EEOC."