An internal investigation of a sexual harassment complaint prior to the filing of a complaint with EEOC not a protected activity within the meaning of Title VII

An internal investigation of a sexual harassment complaint prior to the filing of a complaint with the EEOC not a protected activity within the meaning of Title VII

In a case characterized by the U.S. Court of Appeals, Second Circuit, as one of “first impression,” the court ruled that internal investigations by conducted by an employee of alleged acts of unlawful discrimination in accordance with the employer's policy but initiated prior to the filing of a Title VII complaint does not qualify as a “protected activity.”

The genesis of the case was a complaint made to the employer’s Human Resources Director [HRD] by an employee alleging she had been sexually harassed by a corporate executive.

The HRD began to conduct an internal investigation of the allegations. However, before completing the investigation, the HRD was terminated by employer. Contending that her termination was in retaliation for her participation in the internal investigation, the HRD brought an action againt the employer claiming her investigation activities constituted a protected activity within the meaning of Title VII’s anti-retaliation provision.*

The federal district court granted the employer’s petition for summary judgment, holding that the  HRD’s participation in an internal employer investigation into the employee’s sexual harassment allegations, “an investigation that was not connected to any formal charge with the EEOC,” did not qualify as protected activity under the participation clause of Title VII’s anti-retaliation provision.

Citing Correa v. Mana Prods, Inc., 550 F. Supp. 2d 319, the district court said that “[i]n order to gain protection under the participation clause, the participation must be in an investigation or proceeding covered by Title VII, and thus not in an internal employer investigation.”  In this instance the court found that the HRD’s investigation was conducted pursuant to the employer’s internal procedures and were not  associated with any Title VII proceeding. 

The Court of Appeals agreed with the district court’s ruling.**

Noting that EEOC had submitted an amicus brief urging the court to adopt a  “contrary interpretation of the participation clause, one that embraces internal employer investigations,” the Circuit Court said that although EEOC’s views are entitled to deference to the extent they have the power to persuade, “it did not find the EEOC’s interpretation persuasive in this case and affirmed the district court’s granting of summary judgment dismissing the HRD’s Title VII retaliation claim. 

* Title VII's anti-retaliation provision extends protection both to employees who have "opposed any practice made an unlawful employment practice" under Title VII (the "opposition clause") and to employees who have "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under" Title VII (the "participation clause)." On January 24, 2011 the United States Supreme Court unanimously supported a broad reading of Title VII’s anti-retaliation provision. The high court said that the alleged victim of retaliation has standing to sue even if he or she was not the person who engaged in protected activity [Thompson v. North American Stainless LP131 S.Ct. 863, 2011 U.S. LEXIS 913]. In Thompson the court ruled that, under certain circumstances, a third-party termination may constitute an unlawful reprisal under Title VII’s anti-retaliation provision and that “a person claiming to be aggrieved … by an alleged employment practice” and who 'falls within the zone of interests protected by Title VII' has standing to sue his employer." Second Circuit Judge Raymond Lohier, in a concurring opinion, cited Thompson and said that Congress should clarify whether the kind of investigation the HR conducted falls within the protective sweep of the participation clause.

** The court said that it expressed no opinion as to whether participation in an internal investigation that is begun after a formal charge is filed with the EEOC falls within the scope of the participation clause, noting that some courts “have answered this question in the affirmative noting that in Abbott v. Crown Motor Co., 348 F.3d 537, the USCA, 6th Circuit, held that “Title VII protects an employee’s participation in an employer’s internal investigation into allegations of unlawful discrimination where that investigation occurs pursuant to a pending EEOC charge.”

The decision is posted on the Internet at: