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Employees Only Protected Against Retaliation for Helping Sexual Harassment Probe in an EEOC Investigation

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The Equal Employment Opportunity Commission ("EEOC") is tasked with investigating charges of discrimination brought against companies by their employees. The law specifically protects employees who participate or assist such an investigation. This protection even extends to individuals who were not harassed themselves, but merely assist or verify another's complaint. The question remained, however, whether an employee who participates in an investigation that is held before the EEOC is involved is also protected against discrimination.

The Second Circuit, the federal appeals court that covers New York City, finally answered this question in the recent case of Townshend v. Benjamin Enterprises, Inc., 2012 U.S. App. LEXIS 9441 (2d Cir. May 9, 2012). Agreeing with other appellate courts, the court held that employees who participate in a company's internal investigation unrelated to a formal EEOC charge are not protected against retaliation. The court found that the clear language of the statute protecting employees who "participate" in an investigation is limited to EEOC investigations, and not internal probes conducted by companies. The plaintiff's claims, therefore, were dismissed.

Judge Lohier wrote a separate opinion that, while agreeing with the outcome of the majority's decision, noted the problems it creates. Judge Lohier noted that given the prevalence of internal investigations since the anti-retaliation law was enacted, employees who conduct such investigations must be protected against retaliation in order to ensure that such investigations remain neutral and unbiased. An investigator who may lose her job if she concludes that discrimination did occur has little incentive to conduct a neutral, unbiased investigation. Judge Lohier noted that "it is up to Congress" to fill the "statutory gap" between the language of the statute, which does not protect employees like the plaintiff in Townsend, and the goals of the statute, which is clearly intended to protect individuals who are fired because they uncover unlawful sexual harassment or discrimination.

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