HR Directors Can Be Fired For Doing Their Jobs

Yesterday, in Townsend v. Benjamin Enterprise Inc, the Second Circuit held that employees conducting internal investigations into harassment complaints aren't protected by the anti-retaliation provision of Title VII (specifically, the "participation clause"). The Court held that that particular clause only applies to people "participating" in investigations by government agencies (like the EEOC). However, the only other anti-retaliation provision of Title VII, the "opposition clause" also likely isn't available to HR personnel conducting internal investigations. In order to be protected under that provision, someone must complain about something they have a "good faith basis" to believe is illegal. But if someone has just begun conducting an investigation, how could they possibly have a "good faith basis" to believe one way or another?

This puts HR personnel in a tough bind -- they can be fired for not investigating, and thus not doing their jobs, but they can also be fired if they do investigate. Judge Lohier, in a concurring opinion, essentially asks Congress to step in and tie up this loophole. We couldn't agree with him more.