District Court Sides With Employee Who Cuts The Cheese (Or, How The Scope of Title VII Retaliation Is Expanding)

Contributed by Allison Chaplick

Over the last several years, the U.S. Supreme Court has expanded the scope of retaliation claims brought under Title VII of the Civil Rights Act of 1964. Title VII prohibits an employer from discriminating against an employee who “opposed any practice” prohibited by Title VII or who “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing” under Title VII.  42 U.S.C. § 2000e-3(a).  These are commonly known as the “opposition clause” and the “participation clause.”

In CBOCS West v. Humphries, the U.S. Supreme Court permitted a retaliation claim brought by an employee who was complaining about discriminatory conduct aimed at another employee.  This was significant because typically, the run-of-the-mill retaliation case has to do with an adverse action taken against an employee for complaining about his/her own discriminatory treatment.  Then, in Crawford v. Metropolitan Gov’t., the high court held that the opposition clause afforded protection to employees who participated in an employer’s internal investigation into complaints of discrimination lodged by another employee.

These rulings lead to last week’s decision from the Northern District of Illinois in Flores Gomez v. Restaurant One Limited Partnership d/b/a Spiaggia Restaurant and Café.  In this case, the plaintiff was a formaggaio, or cheese steward, at Spiaggia Restaurant in Chicago.  Spiaggia’s attorneys met with several of the restaurant’s employees to investigate claims of race discrimination brought in a charge of discrimination filed with the EEOC by a former Spiaggia employee. Flores was one of the employees who met the Spiaggia’s attorneys.  Seven months later,Flores was terminated for allegedly serving gratuitous wine to customers without getting a manager’s authorization to do so. Flores claimed he was terminated in retaliation for speaking with Spiaggia’s attorney.

The district court noted that the Seventh Circuit had not taken a position on the issue of “whether participation in an internal investigation begun after a charge filed with the EEOC should be treated as participation in the official investigation.”  Having carte blanche, the district court held that participating in an internal investigation commenced in response to an EEOC charge or Title VII lawsuit is statutorily protected activity under the “participation clause.”

This ruling is important for one reason: with more and more charges of discrimination filed these days, employers and their attorneys are justifiably engaging in the same internal investigation that Spiaggia performed to understand the allegations or form defenses to allegations of discrimination.  Now, under Spiaggia, employers must be aware that for each employee who participates in an investigation is now cloaked with the protections afforded under Title VII that prohibit retaliation for engaging in protected activity.

Perhaps Monty Python was right about the cheesemakers…