In addition to prohibiting employment discrimination based on race, color, sex, religion, and national origin, Title VII of the Civil Rights Act of 1964 prohibits employers from retaliating against employees because they have either (1) filed a charge of discrimination or participated in an administrative proceeding or investigation under Title VII or (2) “opposed” conduct made unlawful by Title VII. What constitutes protected “opposition” to unlawful conduct has been the subject of some disagreement among the courts. Some courts have taken the position that an employee must take the initiative to come forward and speak out against the unlawful conduct, while other courts have protected more passive actions, such as disclosing unlawful conduct only in response to an employer’s internal investigation of possible discrimination in the workplace. On January 26, 2009, however, in Crawford v. Metropolitan Government of Nashville, the U.S. Supreme Court resolved this legal dispute when it unanimously held that employees who have not taken any initiative to speak out against workplace discrimination can still maintain a retaliation claim if they are treated adversely because they have disclosed discriminatory conduct during an employer’s internal investigation.
The Supreme Court’s Decision in Crawford v. Metropolitan Government of Nashville
In Crawford, an employee, Vicky Crawford, who was fired soon after mentioning sexual harassment during an internal investigation of a supervisor’s conduct, sued her employer for retaliation under Title VII. Although Ms. Crawford had never stepped forward on her own initiative to make any report of sexual harassment, she was interviewed as part of her employer’s internal investigation that was prompted by rumors circulating in the workplace about the conduct of a particular supervisor. When asked whether she had witnessed any inappropriate behavior involving the supervisor in question, Ms. Crawford described suffering several instances of sexual harassment. Soon afterward, Ms. Crawford was terminated along with two other employees who had reported harassment. In Ms. Crawford’s subsequent Title VII lawsuit for retaliation, the trial court rejected her claim, reasoning that Ms. Crawford had not “opposed” the supervisor’s conduct since she never initiated a complaint and had “merely answered questions by investigators in an already-pending investigation.” The Sixth Circuit Court of Appeals affirmed this decision, and Ms. Crawford appealed to the Supreme Court.
The Supreme Court reversed the Sixth Circuit’s decision. In its majority opinion, the Court explained that the term “oppose” as used in Title VII’s retaliation provision should be given its common dictionary definition and that the common understanding of that term encompassed conduct far less active than instigating a complaint of discrimination. Indeed, the Court observed that an employee’s reported belief that an employer has engaged in unlawful discrimination virtually always constitutes “opposition” to the activity, even if it is not stated in the form of a complaint. The Court concluded that Ms. Crawford’s conduct here – disclosing a supervisor’s sexually inappropriate conduct in response to her employer’s questions during an internal harassment investigation – was protected against retaliation. To hold otherwise, the Court explained, would encourage employees to keep quiet about illegal activity during internal investigations out of a fear of lawsuit-immune reprisals.
Crawford makes clear that employees are protected from retaliation for activities quite apart from filing a charge of discrimination or an internal complaint. Simply answering questions about discrimination in an internal investigation can be protected from retaliation. This holding creates a new complication for internal investigations into harassment allegations. Employers often have good reasons to investigate reports of improper conduct, such as to identify and eliminate workplace harassment and to arm themselves with an affirmative defense available in connection with certain harassment claims. This defense is available in response to any harassment claim that did not culminate in a tangible adverse employment action – such as termination or demotion – and shields the employer from liability if the employer can demonstrate (1) that it exercised reasonable care to prevent and promptly correct harassment and (2) that the employee unreasonably failed to take advantage of the corrective or preventive opportunities that the employer provided. Although investigating possible harassment can supply employers with an affirmative defense to many harassment claims, Crawford makes clear that it also risks amplifying the number of potential retaliation claims, as employees, who may not have taken the initiative to complain themselves, report harassment when asked. Because any subsequent adverse employment actions against such employees may lead to retaliation claims, employers should ensure that the adverse actions are supported by legitimate business reasons and appropriate documentation and that similarly situated employees who have not engaged in conduct protected by Title VII have been treated in the same fashion.
The Crawford decision also invites litigation over its breadth. Justice Alito, joined by Justice Thomas, concurred in the judgment but wrote a separate opinion to clarify his belief that the Court’s holding should be limited to the facts of the case: reports of discrimination made during an internal investigation. The concurring opinion took issue with one of the dictionary definitions the majority cited for “oppose,” which included being “hostile or adverse to, as in opinion.” Since the majority opinion did not circumscribe the breadth of its holding, employers should share the concurring opinion’s concern that this broad definition of “oppose” may “open the door to retaliation claims by employees who never expressed a word of opposition to their employers.” Whether or not the door will ultimately be shut on such claims, Crawford invites creative retaliation arguments by employees who would otherwise have no grounds to sue.