Employment-Second Circuit Rules That Title VII’s Anti-Retaliation Provision Does Not Apply To Internal Employer Investigations Conducted Prior To Any EEOC Proceeding

In Townsend v. Benjamin Enterprises, Inc., Nos. 09-0197-cv (L), 09-4509-cv (XAP) (2nd Cir. 2012), the Second Circuit Court of Appeals (the “Court”) faced (among other questions) the issue of whether participation in an internal employer investigation, prior to the start of any proceeding before the Equal Employment Opportunity Commission (the “EEOC”), may be protected under the anti-retaliation rule of Title VII. This was an issue of first impression for the Second Circuit.

In this case, one plaintiff, Martha Diane Townsend (“Townsend”), was employed by defendant, Benjamin Enterprises, Inc. (“BEI”). She alleged that she was sexually harassed by defendant Hugh Benjamin, BEI’s Vice President, by directing sexually offensive comments at her, propositioning her, touching her sexually, and sexually assaulting her. Another plaintiff, Karlean Victoria Grey-Allen (“Grey-Allen”), the Human Resources Director of BEI, began to conduct an internal investigation of the allegations. However, before completing the investigation, and before the start of any proceeding by the EEOC, Grey-Allen was fired by defendant Michelle Benjamin, BEI’s President. Grey-Allen alleged that her termination was in retaliation for her participation in the internal investigation. This lawsuit ensued.

In analyzing the case, the Court said that Section 704(a) of Title VII, the anti-retaliation provision, contains both an opposition clause and a participation clause, making it unlawful for an employer to retaliate against an individual because he has (i) opposed any practice made an unlawful employment practice by Title VII, or (ii) made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under subchapter VI of Chapter 21 of Title 42. It is conceded that prong (i)-the opposition clause- does not apply here. As to prong (ii)-the participation clause-the Court noted that every federal court of appeals to have considered this prong 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. The Court agreed with these cases, and ruled that the Title VII anti-retaliation provision does not apply to Grey-Allen.