In a recent case, the 11th Circuit Court of Appeals has refused to extend protected status to an investigator who wanted her company to go further than it was willing to after it discovered sexual harassment.
Recent case: Janet Brush worked in loss prevention for Sears. One of her job duties was to investigate employee harassment and discrimination complaints and recommend action.
A Sears employee called Brush to report that she was being sexually harassed by her supervisor. Brush forwarded the complaint to higher-ups, and the supervisor was immediately suspended.then told Brush and another Sears employee to interview the employee to get the details.
Brush believed the employee wasn’t being completely honest during the interview and decided to speak with her privately, a violation of Sears’ investigative rules. During that meeting, the employee told Brush that her supervisor had raped her on several occasions, but that she didn’t want to go to the police or tell her husband.
Brush passed the information to Sears management, which then fired the supervisor. Brush urged Sears to report the matter to the police, but it refused to. Then Sears fired Brush.
She filed a lawsuit alleging retaliation for engaging in protected activity. She argued that because she was standing up for a rape victim, she could not be punished.
The court disagreed. Sears had done what it was required to do: It conducted an investigation and took action designed to stop the alleged harassment and prevent it from happening again. The court concluded that because Sears was not required by either Title VII or any other law to report the alleged rape, Brush wasn’t engaging in protected activity when she pushed for calling the police. (Brush v. Sears, No. 11-10657, 11th Cir., 2012)
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