Supreme Court Rules That Employee’s Involvement in Internal Investigation Constitutes Protected “Opposition” Under Title VII
February 5, 2009
Erika Royal- Ft Lauderdale
Title VII of the Civil Rights Act of 1964 prohibits an employer from retaliating against an employee because the employee has (1) “opposed” race, sex, religion or national origin discrimination or (2) made a charge, testified, assisted, or participated in any manner in any investigation, proceeding or hearing under Title VII. These provisions are known as the “opposition” clause and the “participation” clause, respectively.
On January 26, 2009, the United States Supreme Court ruled that Title VII’s protection against retaliation under the opposition clause extends to an employee who reported alleged harassment not on her own initiative, but in response to the employer’s questions during the employer’s internal investigation of a harassment complaint made by another employee. The decision confirms the broad scope of Title VII’s anti-retaliation protections and increases the risk employers face from retaliation claims. Crawford v. Metropolitan Gov’t of Nashville and Davidson County, Tennessee, 06-1595 (Jan. 26, 2009).
The Facts And The Lawsuit
The Crawford case arose out of the Metropolitan Government of Nashville and Davidson County’s (Metro) internal investigation into complaints that its Employee Relations Director (ERD) had engaged in unlawful sexual harassment. During the investigation, a Metro Human Resources officer asked 30-year employee Vicky Crawford whether she had witnessed any inappropriate behavior on the part of the ERD. Crawford replied by describing several instances in which the ERD directed sexually harassing behavior at her. Two other employees also reported being sexually harassed by the ERD. Following the investigation, Metro took no disciplinary action against the ERD, but it discharged Crawford and the other two employees who claimed to have been harassed. Crawford, who was supposedly terminated for embezzlement, filed an EEOC charge and lawsuit against Metro, claiming that her discharge constituted unlawful retaliation for her report of the ERD’s behavior under both the opposition and the participation clauses.
The district court granted summary judgment for Metro. It found that Crawford could not have engaged in protected “opposition” because she had not “instigated or initiated any complaint” of unlawful discrimination or harassment, but had simply answered questions during an investigation into someone else’s complaint. The court also ruled that the participation clause protects an employee during an employer’s internal investigation of discrimination or harassment only if an EEOC charge has already been filed. The Sixth Circuit Court of Appeals affirmed. It held that the opposition clause requires active, consistent “opposing” activities and noted that Crawford did not instigate or initiate any complaint, or take any action after the investigation and before her termination. The appeals court also agreed that Crawford’s participation in the internal investigation was not protected because there was no EEOC charge pending.
The Supreme Court’s Decision
The Supreme Court disagreed and ruled that Crawford’s description of the harassment she allegedly suffered in response to the investigator’s questions constituted protected “opposition” to discrimination. The Court rejected the rule that an employee must “instigate or initiate” a complaint and engage in “active, consistent ‘opposing’ activities” to be protected from retaliation under the opposition clause. The Court stated that there is no justification for a “freakish” rule protecting an employee who reports discrimination on her own initiative, while not protecting one who reports the same discrimination in the same words when her boss asks a question. Rather, the Court agreed with the Government’s position 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 that activity.” Because the Court found that Crawford’s conduct was covered by the opposition clause, the Supreme Court did not address whether her conduct was also protected by the participation clause.
Justice Alito, joined by Justice Thomas, wrote separately to state that although they agreed with the ruling, they wished to emphasize that the case did not involve and should not be read to address an employee’s mere “opinions” about discrimination that were never communicated to the employer, but were instead stated in “private” or “informal” communications with co-workers.
Why This Holding Is Important To Employers
The Supreme Court’s Crawford decision has far-reaching implications. The holding that merely describing harassing behavior in response to questioning during a sexual harassment investigation of another’s complaint may constitute protected “opposition” means that virtually anyone questioned during a harassment investigation may become protected from retaliation. But limiting internal investigations of harassment and discrimination allegations creates its own risks. Employers are obligated to promptly investigate and stop harassing behavior to avoid liability for sexual and discriminatory harassment, and effective internal investigations may resolve many harassment complaints and avoid expensive litigation. If employers are not able to resolve issues through internal investigations, employees may file a greater number of EEOC charges and associated lawsuits. Employers therefore must ensure that before they take adverse employment action against an employee who has described harassment or discrimination during an investigation, they have a documented, non-discriminatory basis for the decision that has nothing to do with the employee’s statements during the internal investigation.
Finally, this holding, like the Supreme Court’s holding in the 2006 case Burlington Northern v. White, will likely impact the way courts analyze retaliation claims brought under other federal and state civil rights statutes.
For more information, contact:
Erika Royal
954.468.7831
erika.royal@hklaw.com
toll free: 1.888.688.8500
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