When Is An Employee’s Participation In An Internal Investigation “Protected Activity” Under Title VII (Part I)

Today, our video discusses an issue that comes up frequently — can an employee’s participation in an internal investigation turn into “protected activity” under Title VII?

This is the first of a series of posts on this topic. You can also see this issue discussed in detail in Mark’s paper.

The first thing to note is that participation in a purely internal investigation is not covered by Title VII’s participation clause.

Under the participation clause of Title VII, employers are prohibited from retaliating against an employee who participates in any manner in an investigation, proceeding, or hearing under Title VII or assists a fellow employee in his or her Title VII action. 42 U.S.C. § 2000e-3(a). The Seventh Circuit has held that “[t]he ‘investigation’ to which section 2000e-3 refers does not include an investigation by the employer, as distinct from one by an official body authorized to enforce Title VII.” Hatmaker v. Memorial Med. Ctr., 619 F.3d 741, 747-48 (7th Cir. 2010) (noting that “[t]o bring an internal investigation within the scope of the clause we would have to rewrite the statute”); see also EEOC v. Total System Servs., Inc., 221 F.3d 1171, 1174 (11th Cir. 2000) (finding that “[participation] clause protects proceedings and activities which occur in conjunction with or after the filing of a formal charge with the EEOC; it does not include participating in an employer’s internal, in-house investigation, conducted apart from a formal charge with the EEOC”). In other words, “the participation clause is meant to protect employees who take part in or otherwise assist in an EEOC investigation; it is only those investigations that are conducted ‘under’ Title VII procedures.” Olsen v. Marshall & Ilsley Corp., 2000 WL 34233699, at *18 (W.D. Wis. 2000) (citing Laughlin v. Metropolitan Washington Airports Authority, 149 F.3d 253, 259 (4th Cir. 1998)); Tuthill v. Consolidated Rail Corp., No. Civ. A. 96-6868, 1997 WL 560603, *4 (E.D. Pa. Aug. 26, 1997) (“Title VII’s definition of ‘protected activity’ does not include participation in an internal investigation”), aff’d, 156 F.3d 1255 (3rd Cir. 1998); Morris v. Boston Edison Co., 942 F. Supp. 65, 71 (D. Mass. 1996) (“[a]ll the activity described as being protected under the participation clause relates to actions taken in outside, formal statutorily created proceedings.”).

In May 2012, the Second Circuit Court of Appeals followed the cases cited above, and held that an employee conducting an internal investigation into harassment complaints was not protected by the “participation clause” of the anti-retaliation provision of Title VII, when the investigation was triggered by a purely internal complaint, and not an EEOC charge. See Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 49-51 (2d Cir. 2012). In its decision, the Second Circuit observed that its decision was consistent with every other appellate court’s determination on this issue:

Every Court of Appeals to have considered this issue squarely has held that participation in an internal employer investigation not connected with a formal EEOC proceeding does not qualify as protected activity under the participation clause. See Hatmaker, 619 F.3d at 746–47; Total Sys. Servs., 221 F.3d at 1174; Vasconcelos v. Meese, 907 F.2d 111, 113 (9th Cir. 1990). The Courts of Appeals for the Fifth and Sixth Circuits have also suggested that, for conduct to be protected by the participation clause, it must occur in connection with a formal EEOC proceeding. See Abbott, 348 F.3d at 543; Byers v. Dallas Morning News, Inc., 209 F.3d 419, 428 (5th Cir. 2000).

Id. at 49.

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