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Supreme Court Rules that Employee Who Participated in Internal Investigation is Protected Against Retaliation
February 10, 2009
Continuing its string of pro-employee decisions on retaliation, the U.S. Supreme Court has ruled that Title VII’s ban on retaliation extends to an employee who voluntarily participates in her employer’s internal investigation and discloses incidents of sexual harassment, even if the employee did not previously complain about the harassment or file a formal charge with a government agency. The decision in the case, Crawford v. Metropolitan Gov’t of Nashville and Davidson County, was unanimous, although Justice Alito filed a cautionary concurring opinion in which Justice Thomas joined.
The case was brought by Vicky Crawford, a 30-year employee of the Metro school district, who had voluntarily agreed to participate in Metro’s internal investigation of rumored sexual harassment involving the school district’s employee relations director, Gene Hughes. In response to specific questions put to her by a Metro official about whether she had witnessed inappropriate behavior, Crawford described in graphic detail how, on several occasions, Hughes had sexually harassed her. Specifically, she claimed that Hughes had grabbed his crotch in her presence; that he had asked to see her breasts; and that, on one occasion, he grabbed her head and tried to force it into his groin.
No disciplinary action was taken against the director, but Crawford and two other female employees who had participated in the investigation were subsequently fired. The school district claimed that Crawford was terminated for embezzlement; however, no charges were ever filed against her Crawford sued, alleging that she had been discharged for her cooperation in the investigation, in violation of Title VII, Section 704(a), the statute’s ant-retaliation provision. That section contains two distinct kinds of protection from retaliation. The subsection known as the “participation” clause prohibits retaliation against an employee who “has made a charge, testified, assisted, or participated in any manner in… [a Title VII] investigation, proceeding, or hearing.” Under the subsection known as the “opposition” clause, it is unlawful to retaliate against an employee because he or she “opposed” any practice prohibited by Title VII. Crawford claimed that her termination violated both clauses.
The district court which first heard the case granted Metro’s motion for summary judgment. It held that the opposition clause did not apply because Crawford had not "instigated or initiated any complaint," but had "merely answered questions by investigators in an already-pending internal investigation, initiated by someone else." The lower court also found that Crawford’s claim failed under the participation clause, because that clause only protects "an employee's participation in an employer's internal investigation ... where that investigation occurs pursuant to a pending EEOC charge."
Crawford then appealed without success to the U.S. Court of Appeals for the Sixth Circuit. Affirming the lower court’s ruling and reasoning with respect to both retaliation provisions, the appeals court emphasized that the opposition clause "demands active, consistent ‘opposing’ activities to warrant ... protection against retaliation." Here, the court concluded, Crawford had not initiated any complaint either prior or subsequent to the internal investigation in which she participated.
The Supreme Court took the case because the Sixth Circuit’s interpretation of the opposition clause was, in the words of the Bush Administration’s Solicitor General, “out of step” with the other Circuits. It is notable that the SG had filed a brief in support of Crawford’s position, considering that the Bush Administration was known for its conservative stance on employment matters.
In an opinion written by Justice Souter, the Court reversed the Sixth Circuit, holding unequivocally that the opposition clause protects an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer's internal investigation. Noting that the statute does not define "oppose," the Court applied the word’s dictionary meaning of “resisting or contending against.” It then concluded that Title VII does not demand, as the Sixth Circuit held, “active, consistent” opposition:
There is…no reason to doubt that a person can "oppose" by responding to someone else's question just as surely as by provoking the discussion, and nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question.
Thus, the Court found that Crawford's statements were covered by the opposition clause, as “an ostensibly disapproving account of Hughes's sexually obnoxious behavior” toward her. In so ruling, the Court effectively adopted the EEOC guideline that “[w]hen an employee communicates to her employer a belief that the employer has engaged in ... a form of employment discrimination, that communication virtually always constitutes the employee's opposition to the activity." (The Supreme Court did not address whether Crawford was protected under the participation clause as well.)
In reaching this conclusion, the Court rejected Metro’s (and the Sixth Circuit’s) argument that a ruling in favor of Crawford would deter employers from investigating sexual harassment claims out of fear that any adverse action taken against a participating employee might be deemed unlawful retaliation. In fact, the Court decided that the opposite may be true. As Souter explained, in some circumstances, an employer may avoid liability for a supervisor’s sexual harassment of an employee if it "exercised reasonable care to prevent and correct promptly” any discriminatory conduct reported by the employee or that it reasonably should have known about. This defense, Souter observed, gives employers “a strong inducement to ferret out” and end discriminatory activity in their operations “as a way to break the circuit of imputed liability.”
The Court further rejected the Sixth Circuit’s narrow definition of “opposition” on the ground that it would create an untenable “Catch-22” situation for employees who are sexually harassed, explaining:
The appeals court's rule would…create a real dilemma for any knowledgeable employee in a hostile work environment if the boss took steps to assure a defense under our cases. If the employee reported discrimination in response to the enquiries, the employer might well be free to penalize her for speaking up. But if she kept quiet about the discrimination and later filed a Title VII claim, the employer might well escape liability, arguing that it ‘exercised reasonable care to prevent and correct [any discrimination] promptly’ but ‘the plaintiff employee unreasonably failed to take advantage of ... preventive or corrective opportunities provided by the employer.’
Thus, the Court held that a broader reading of the opposition clause better protects both employers and employees.
Notably, although he agreed with the Court’s holding, Justice Alito, joined by Justice Thomas, wrote a concurring opinion warning against reading the Court’s language too broadly. Alito apparently was concerned about Souter’s claim that the Court “would call it ‘opposition’ if an employee took a stand against an employer's discriminatory practices not by ‘instigating’ action, but by standing pat, say, by refusing to follow a supervisor's order to fire a junior worker for discriminatory reasons.” While agreeing that the Sixth Circuit’s definition of “opposition” was too narrow, Alito stressed that the term nevertheless requires conduct “that is active and purposive.” Accordingly, he rejected any suggestion in Souter’s opinion that the opposition clause extends to opposition in principle or “silent opposition.”
The Court’s ruling affirms the definition of “opposition” already followed in most Circuits that have considered the issue.
Nonetheless, Alito’s concern that the decision may be broader than it appears – a concern neither refuted nor even acknowledged by Souter’s opinion – may suggest that, down the road, a majority of the Court would be inclined to expand the definition even further.
Indeed, the ruling adds to a growing body of decisions by the Roberts Court broadly construing the reach of Title VII’s anti-retaliation provisions. This phenomenon began with the Court’s 2006 holding in Burlington Northern & Santa Fe Railway Co. v. White. That case defined retaliation to include any adverse action that “dissuaded a reasonable worker from making or supporting a charge of discrimination,” including actions not directly related to the worker’s employment and actions causing harm outside the workplace. In addition, last term, the Court implied a prohibition against retaliation in two civil rights statutes that were silent on the issue.
The bottom line, then, is that, at least with respect to retaliation, the Roberts Court is not a pro-employer Court. Indeed, the Court’s rulings on the issue should serve as an unmistakable admonition to employers to develop and enforce an anti-retaliation policy, and ensure that supervisors understand and strictly adhere to that policy.