Title VII Now Protects Activity Opposing Harassment And Discrimination In Internal Workplace Investigations
Employees who allege that they were discharged for opposing harassment or discrimination in internal workplace investigations may now sue the employer for retaliation under Title VII, the Supreme Court of the United States has ruled.
In 2002, in Crawford v. Metropolitan Government of Nashville, the Metropolitan Government of Nashville & Davidson County, Tennessee (“Metro”) conducted an internal investigation of alleged sexual harassment by employee-relations director Gene Hughes. As part of its investigation, Metro met with Vicky Crawford, a coworker of the employee who had raised the allegations. In response to questioning by Metro, Crawford disclosed that she had been subjected to several sexually harassing advances by Hughes.
After completing its investigation, Metro took no action against Hughes but discharged Crawford and two other accusers, asserting that its discharge of Crawford was for embezzlement. Crawford filed a charge with the Equal Employment Opportunity Commission (“EEOC”), followed by a suit in the United Stated District Court for the Middle District of Tennessee. She claimed that Metro had terminated her employment for reporting Hughes’s inappropriate behavior and that the termination, therefore, was unlawful retaliation under Title VII.
As Crawford pointed out, Title VII has two clauses protecting employees from retaliation: (i) the “opposition clause,” which protects employees who have opposed an unlawful employment practice, and (ii) the “participation clause,” which protects employees who have participated in an investigation, proceeding, or hearing under Title VII. Crawford claimed that Metro had violated both clauses. Metro defended the charge by asserting that Crawford had not engaged in protected activity because she merely answered questions that were posed to her during its internal investigation.
The court sided with Metro, holding that (a) Crawford was not protected by the opposition clause because she had not “instigated or initiated” a complaint resulting in her discharge, and (b) Crawford was not protected by the participation clause because Metro’s internal investigation was not “pursuant to a pending EEOC charge.” After the United States Court of Appeals for the Sixth Circuit affirmed this decision, Crawford successfully petitioned the Supreme Court for review.
The Supreme Court’s Decision
The Supreme Court focused its attention on the opposition clause. Noting that Title VII does not define “oppose,” the Court turned to the dictionary to determine the ordinary meaning of this word, adopting the following definition: “to resist or antagonize…; to contend against; to confront; resist; withstand.” Based on this definition, a unanimous Court found that Crawford’s conduct constituted “opposition” and, as such, was protected by the opposition clause. (The Court declined to address whether Crawford’s conduct was also protected by the participation clause.)
The Court explained that “[t]here 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 [Title VII] 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.”
Were it to hold otherwise, explained the Court, employees would have no incentive to voice their concerns about bias and discrimination during internal investigations because employers would be free to discharge them without penalty.
In a concurring opinion joined by Justice Thomas, Justice Alito opined that the majority’s opinion does not extend to employees who offer only “silent opposition” to an employer’s discriminatory practices. According to Justice Alito, an employee must engage in “active and purposive” conduct in order to gain protection under the opposition clause.
Implications For Employers
Crawford has significant and immediate implications for employers. In light of this decision, employers should now precede any discharge with a review of whether the employee recently participated in an internal investigation and, if so, whether the employee said anything to “oppose” workplace harassment or discrimination. If the discharge would be in close temporal proximity to the investigation, and if the employee had actively spoken out, then the employer might consider whether the reasons for the discharge could withstand a legal challenge, or perhaps consider alternatives to discharge. By proceeding in this manner, employers may develop strategies for effectively dealing with such situations without stepping into the crosshairs of a Crawford lawsuit.
If you are faced with an actual or threatened lawsuit alleging retaliation under Title VII, or if you have questions about the implications of Crawford, please feel free to contact us for assistance.