by Jackson Lewis

Joining other federal appeals courts, the U. S. Court of Appeals for the Sixth Circuit in Cincinnati has ruled that an individual who was discharged after he identified himself as a witness to co-worker harassment can sue his employer for retaliation. Although the employer offered a legitimate reason for the discharge, the individual alleged he was fired because he had indicated he would participate in the co-worker's harassment case pending before the Equal Employment Opportunity Commission. When an employer conducts an internal investigation of discrimination charges currently pending before the EEOC, an employee who identifies himself as a witness to the conduct is protected by Title VII of the Civil Rights Act of 1964, the court said. [Abbott v. Crown Motor Co., 6th Circuit (11/03/03).]

Facts. The underlying charges of racial harassment were filed against the employer automotive dealer by a service department technician who claimed his supervisor engaged in racial slurs and other discriminatory conduct adversely affecting his job. After the employer launched its own internal investigation, a co-worker in the service department identified himself as a witness to the conduct and indicated he was willing to testify in court about the case. According to the co-worker, the manager conducting the investigation responded with a contemptuous attitude.

Eight months after the internal investigation and the discharge of the errant supervisor, the underlying discrimination charges were withdrawn. Several months later, the employee who had filed those charges voluntarily resigned. The following month, the employer discharged the co-worker on the grounds that he was insubordinate.

Retaliation claim. In his lawsuit, the co-worker claimed the discharge was in retaliation for his participation in the technician's harassment case. In support of his claim, he offered evidence of statements made by various members of management about getting back at employees who took action against the employer through outside means. He also alleged that his supervisor had told another employee that he had been fired because he got involved in other people's business. Additionally, the co-worker claimed the employer had given a negative job reference, contrary to the employer's policy on providing employment information.

Sixth Circuit decision. Although the federal district court ruled against the individual, granting summary judgment to the employer, the federal appeals court disagreed. In overturning the summary judgment, the Sixth Circuit found the co-worker had presented enough evidence of unlawful conduct by the employer to allow the case to proceed. The appeals court found significant the retaliatory statements made by management close in time to the discharge. It also noted the negative job reference as an indication that the employer may have been motivated by retaliation even though it had other legitimate reasons to discharge the employee.

Joining several other federal appeals courts, the Sixth Circuit held for the first time that participation by a co-worker in a discrimination case involving another employee is protected activity. "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 court said.

Note: The number of charges filed with the EEOC claiming retaliation under Title VII has doubled in the ten-year period between 1992 and 2002, making it the fastest growing category of claims. Of the nearly 85,000 individual charges filed in 2002, retaliation accounted for 27 percent. Such claims have a life of their own, as courts have allowed retaliation claims to succeed even when the underlying charges of discriminatory conduct have failed.