Tennessee Business Litigation Law Blog

Is cooperating with a sexual harassment investigation enough to give an employee protection under Title VII’s “opposition” and “participation” clauses? Not necessarily, according to the Sixth Circuit Court of Appeals. Title VII’s anti-retaliation provisions protect employees who “oppose” unlawful acts and who “participate” in investigations, proceedings, or hearings.

In a recent case, a Metropolitan Government of Nashville 30-year employee was fired after cooperating as a witness in an internal sexual harassment investigation. The court held that there was no protection for the employee under either clause. There was not the kind of overt opposition required under Title VII because the employee merely cooperated with the investigator’s request for an interview, during which she related unfavorable information about the alleged harasser. The employee did not initiate a complaint prior to participating in the investigation nor did she take any further action following the investigation – actions generally seen as overt opposition.

In addition, because there was no formal EEOC charge that prompted the investigation (there was just an internal complaint), the employee was not protected under Title VII’s participation clause. The court followed the general rule that an employee seeking protection under this clause must have been involved in an investigation involving a formal EEOC charge, rather than an internal, in-house investigation, which was the case here. Read the opinion here.

Tennessee currently has two distinct causes of action for retaliatory discharge: (1) a common law tort remedy, and (2)a statutory remedy under the Tennessee Public Protection Act. Although the two causes of action are very similar in many respects, they are not identical.

The elements of these two causes of action are aptly laid out in a recent opinion from the Eastern District, Southmayd v. Apria Healthcare, Inc. 412 F.Supp.2d 848 (E.D.Tenn., 2006).

"To establish a claim for retaliatory discharge under the TPPA, Southmayd must show (1) his status as an employee of Apria; (2) his refusal to participate in, or remain silent about, illegal activities; (3) his termination; and (4) an exclusive causal relationship between his refusal to participate in or remain silent about illegal activities and his termination by Apria. Under the common law cause of action for retaliatory discharge, Southmayd must show that (1) an employment-at-will relationship existed; (2) he was discharged; (3) the reason for his discharge was that he attempted to exercise a statutory or constitutional right, or for any other reason which violates a clear public policy evidenced by an unambiguous constitutional, statutory, or regulatory provision; and (4) that a substantial factor in Apria's decision to discharge him was his exercise of protected rights or compliance with clear public policy."

Southmayd at 412 F.Supp. at 862.

Interestingly, there was allot of back and forth in the late 1990's about whether the statutory remedy supplanted the common law cause of action. This question had serious implications as the statutory remedy requires that the employee show an exclusive relationship between the alleged action and his or her firing, while the common law claim only requires a showing that the alleged action was a substantial factor in the employee's discharge. This question was resolved by the Tennessee Supreme Court in Guy v. Mutual of Omaha, 79 S.W.3d 528 (Tenn. 2002) where it held that the statutory cause of action is a cumulative remedy that does not preempt the common law cause of action.