In its 2009 Crawford decision, the U.S. Supreme Court concluded that an employee who is interviewed as a possible witness to workplace discrimination or harassment is protected from later retaliation by the employer under Title VII. Last week, the Eleventh Circuit Court of Appeals refused to extend Crawford to protect a company investigator who objected to the way the employer was responding to an employee's sexual harassment claim.

In Brush v. Sears Holding Corp., the plaintiff was an internal investigator for Sears who interviewed a female employee who claimed that she had been raped by her supervisor. Sears subsequently terminated the plaintiff on the basis of violation of its internal investigation procedures. She sued under Title VII, claiming that the actual reason for the termination was her objection to Sears' decision not to immediately contact law enforcement authorities with regard to the rape allegations.

Sears responded that the plaintiff had not engaged in any protected activity under Title VII. The Eleventh Circuit agreed, affirming dismissal of the claim. Distinguishing Crawford, the court concluded that disagreeing with the way in which an employer conducts an internal investigation is not protected behavior under Title VII. Sears was not required by law to report the alleged rape to the police, and therefore, the plaintiff never expressed opposition to an illegal employer practice. In Crawford, the employee was solicited for information pertaining to the harassment investigation. In this case, the plaintiff never claimed that Sears tolerated the alleged sexual assault. She only disagreed with internal investigation procedures. Title VII does not specify required procedures for such investigations, and the plaintiff's opposition here did not constitute legal retaliation.

The EEOC supported the plaintiff in this case, raising the likelihood that it will do so in other jurisdictions. Employers faced with the unusual need to discipline or discharge an internal investigator should make certain that they can clearly articulate and document a basis for the decision that is not related to opposition to illegal practices.