Justices Hold Employee Response During An Internal Investigation Is "Protected Activity"

On January 26, the U.S. Supreme Court once again expanded employ-ees' ability to sue for retaliation. With seven Justices in agreement, plus the remaining two concurring in the judgment, the Court held that an employee who answers a question about a fellow employee's improper conduct during an internal sexual harassment investigation is engaging in "protected activity" under Title VII of the Civil Rights Act. As a result of this ruling, it is likely that employers will face even more retaliation litigation. Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, No. 06-1595, U.S. Supreme Court (January 26, 2009).

Factual Background

The case was brought by Vicky Crawford, a 30-year employee of the Metropolitan Government of Nashville. Crawford claimed she was fired in retaliation for answering questions as to whether she had witnessed another employee engage in "inappropriate behavior." Specifically, in response to questions from a human resources officer conducting the investigation, Crawford reported several incidents of misconduct by the alleged harasser, but she did not affirmatively complain about his behavior. The employer took no action against the alleged harasser but fired Crawford a short time later, citing embezzlement as the reason.

After receiving a right-to-sue letter from the Equal Employment Opportunity Commission (EEOC), Crawford filed suit against her former employer alleging unlawful retaliation under Title VII. The statute's anti-retaliation provision has two clauses that prohibit discrimination against an employee: "[1] because he has opposed any practice made an unlawful employment practice by this subchapter, or [2] because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this subchapter." The first is known as the "opposition clause" and the other as the "participation clause."

The trial judge dismissed the lawsuit, finding that Crawford could not sue under the opposition clause because she had not "instigated or initiated any complaint." Rather, the court held, she had "merely answered questions in an already-pending internal investigation, initiated by someone else." The judge held that her claim also failed under the participation clause because the statute only protects "an employee's participation in an employ-er's internal investigation . . . where that investigation occurs pursuant to a pending EEOC charge." The Sixth Circuit Court of Appeals upheld these rulings and Crawford asked the Supreme Court to review the case. Because the Sixth Circuit's decision conflicted with those of other circuits (particularly with respect to the "opposition clause"), the Supreme Court agreed to hear the case.

Legal Analysis

The Justices held that Crawford's conduct was covered by the statute's opposition clause, thereby allowing her to sue under Title VII. According to the Court, "The statement Crawford says she gave to [the human resources officer] is . . . covered by the opposition clause, as an ostensibly disapproving account of sexually obnoxious behavior toward her by a fellow employee, an answer she says antagonized her employer to the point of sacking her on a false pretense."

The Justices rejected Metro's argument that if employees such as Craw-ford are covered under Title VII's anti-retaliation provision, employers will be unlikely to conduct internal investigations. Describing this argument as "unconvincing," the Court found that employers already have "a strong inducement to ferret out and put a stop to any discriminatory activity in their operations as a way to break the circuit of imputed liability." Thus, the case was sent back to the Sixth Circuit to consider several other defenses raised by the employer to Crawford's claim.

Practical Impact

According to Ron Chapman, Jr., a shareholder in Ogletree Deakins' Dallas office: "The Court's ruling is neither surprising nor particularly controversial, based on the facts of the case. The key question, however, is how the ruling will be interpreted and applied to different fact patterns in the future. Will other forms of passive opposition suffice to establish a claim for retaliation? Both the concurring opinion and a strict reading of the majority opinion suggest the answer is no, but you can bet that aggressive plaintiffs' lawyers will try to extrapolate this ruling to protect other forms of conduct that as of now are insufficient to establish a retaliation claim."