Once a formal complaint has been filed with the Equal employment Opportunity Commission (EEOC), internal investigators acting in conjunction with that complaint are protected from retaliation, but not before, as the 2nd Circuit decided in Townsend v. Benjamin Enterprises Inc. But in-house counsel should not make the mistake of thinking that EEOC complaints are the only official proceedings that confer protection on internal investigators.

In Gomez v. Restaurant One Limited Partnership, the Northern District of Illinois held that an employee who was terminated after participating in an internal investigation could move forward with his retaliation claim because the investigation revolved around a former employee at the same company who had filed a race discrimination lawsuit.

So, once a matter has reached the point of an official complaint, whether it be an EEOC action or a lawsuit filed in the courts, internal investigators become shielded from retaliation. “It makes sense that Congress would find protections for involvement in investigation-related activities, once it reaches that level,” says Kathleen Anderson, a partner at Barnes & Thornburg. “It becomes a little bit more gray before that time.”