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Appellate Court Refuses to Apply “Participation Clause” to Internal Company Investigations

Title VII forbids an employer from retaliating against an employee who reports discrimination.  Title VII’s antiretaliation provision contains two clauses:  the “opposition clause,” which prohibits an employer from discriminating against an employee who has opposed any employment practice prohibited by Title VII; and the “participation clause,” which prohibits an employer from discriminating against an employee who has made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing under Title VII.   

 The U.S. Court of Appeals for the Seventh Circuit recently held that the participation clause of Title VII did not protect an employee who made disparaging comments about her supervisor during an internal company investigation.  Hatmaker v. Mem’l Med. Ctr., 2010 LEXIS 18098, at *13 (7th Cir. Aug. 30, 2010).  Memorial Medical Center (MMC) launched an investigation after Hatmaker repeatedly voiced concerns about her supervisor’s ability to work well with women.  Hatmaker told investigators that her supervisor was a “Southern Baptist” and “good ole boy” and therefore inherently sexist.  MMC eventually cleared the supervisor of any wrongdoing and terminated Hatmaker.  Hatmaker filed suit, claiming MMC retaliated against her for participating in the company investigation.  The Seventh Circuit disagreed, holding that the participation clause applied only to “official” investigations—those conducted by an official body authorized to enforce Title VII—and not to internal company investigations.  Writing for the court, Judge Posner stated, “participation [in an internal company investigation] doesn’t insulate an employee from being discharged for conduct that, if it occurred outside an investigation, would warrant termination.”  Hatmaker, the court found, was terminated not because she participated in the investigation, but because of comments she made that demonstrated bad judgment and a preoccupation with superficial characteristics of her boss, and for harping on irrelevant issues.  Hatmaker’s conduct was therefore unprotected, and she could not claim retaliation under Title VII.  The court declined to consider, however, whether an internal company investigation would qualify as “official” if a charge had already been filed with the EEOC. 

The Seventh Circuit’s opinion comes on the heels of a U.S. Supreme Court decision that held that the opposition clause of Title VII did protect an employee who spoke out about discrimination in response to company questions during an internal investigation.  Crawford v. Metro. Gov’t of Nashville & Davidson County, Tenn., 129 S. Ct. 846, 853 (2009).  The Metropolitan Government of Nashville and Davidson County launched an investigation to determine whether Crawford’s co-worker was sexually harassing women.  At the company’s request, Crawford disclosed several incidences of harassment.  The employer, however, declined to discipline the co-worker and instead terminated Crawford.  Crawford filed a retaliation lawsuit, claiming her comments were protected by the opposition and participation clauses of Title VII.  The Court held that “a person can ‘oppose’ by responding to someone else’s question just as surely as by provoking the discussion.”  As a result, Crawford’s conduct was protected under the opposition clause, and the Court declined to consider whether the participation clause also applied. 

The Seventh Circuit’s ruling brings some clarity to when employees may claim retaliation under Title VII.  Namely, an employee may not claim retaliation under the participation clause of Title VII simply because he or she took part in an internal company investigation, provided no EEOC charge was pending at the time of his or her participation.  However, the line between “participation” and “opposition” is thin, and employers still must tread carefully when taking adverse action against employees who participate in internal investigations.   

© 2020 Vedder Price


About this Author

Bruce R. Alper, Vedder Price Law Firm, Labor Employment Attorney

Bruce R. Alper is a shareholder at Vedder Price, where he has practiced management side labor and employment law for over 25 years. An accomplished litigator, Mr. Alper has represented employers in employment disputes of all types in judicial, administrative and arbitral forums. He has years of experience advising employers on matters involving employment discrimination, sexual harassment, wrongful discharge, workforce reductions, labor relations, family/medical leaves and other employment regulatory matters. Mr. Alper represents a wide range of private-sector employers, including...