B U S I N E S S , L A B O R & E M P L O Y M E N T N E W S L E T T E R – 2 N D Q U A R T E R 2 0 0 9
You already know that when an employee opposes harassment or
discrimination, that action is “protected.” In other words, an
employer may not demote, fire, or otherwise treat the complaining
person differently because of the complaint.
As briefly noted in the last newsletter, the United States Supreme
Court recently took that protection one step further: In Crawford v.
Metropolitan Government of Nashville and Davidson County, 129
S. Ct. 846 (2009), the Court decided that when an employee
cooperates with an internal investigation, and simply answers
questions about harassment or discrimination, those statements
are also protected. The plaintiff in Crawford participated in an
internal investigation regarding sexual harassment charges, and
was later terminated for embezzlement. She alleged the
embezzlement claim was pretext, and that she was terminated in
retaliation for cooperating with the investigation. The employer
argued that cooperating with an investigation is not the same as
“opposing” an unlawful action. The lower courts agreed, but the
Supreme Court reversed.
Other kinds of whistleblowing protections are
not as broadly worded. For instance, ORS
659A.230 protects “reports” of criminal
activity and “complaints” filed in court or
with an administrative agency. ORS
654.062 protects “complaints” to Oregon OSHA
regarding unsafe working conditions.
On the other hand, ORS 659A.183 prohibits adverse employment
action when an employee simply “inquires about” medical leave
(even if the employee is not actually eligible for medical leave).
And ORS 659A.040 prohibits retaliatory action not only when an
employee files a workers compensation claim but also when an
employee “invokes” the workers compensation procedures, by
reporting that an injury has occurred. Similarly, requesting
accommodation for a disability, or for religious practices, is
The list of activities protected under the broad aegis of “wh