In Crawford v. Metropolitan Government of Nashville et al., the United States Supreme Court unanimously ruled that an employee is protected by the anti-retaliation provisions of Title VII of the Civil Rights Act of 1963 even when the employee has not filed a formal charge or complaint against the employer. This case serves as a reminder to all employers that information learned from an employee in one context may serve as the underpinning for legal action in another.

Here, the employee worked for a school district and was asked by an internal investigator whether she had witnessed any "inappropriate behavior" on the part of a specific co-worker. In response to that inquiry, employee responded that this specific co-worker had previously made crude gestures and comments to her. Shortly after providing this information to the investigator, she was fired for alleged embezzlement. The employee then filed a lawsuit under the anti-retaliation provisions of Title VII of the Civil Rights Act of 1963, claiming that she was retaliated against for reporting her co-worker's behavior. Specifically, those provisions make it unlawful for an employer to discriminate against any employee who has (1) opposed any [covered] unlawful practice ("opposition clause"), or (2) "has made a charge, testified, assisted, or participated in any manner in a [protected] investigation, proceeding, or hearing" ("participation clause").

In granting the employer's motion for summary judgment, both the trial court and the Sixth Circuit Court of Appeals held that for the "opposition clause" to be satisfied, a plaintiff must show active, consistent opposing activities to warrant protection against retaliation, and the employee did "not claim to have instigated or initiated any complaint prior to her participation in the investigation, nor did she take any further action following the investigation and prior to her firing." The courts further held that the employee could show no violation of the "participation clause" because her employer's internal investigation was not conducted pursuant to a pending EEOC charge. The U.S. Supreme Court agreed to hear the case.

In an opinion authored by Justice Souter, the U.S. Supreme Court found the Sixth Circuit Court of Appeals' analysis to be mistaken. The Supreme Court held that there was "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." The Court downplayed the employer's argument that such a rule would chill workplace investigations by employers, finding that the attractiveness of an Ellerth-Faragher affirmative defense would encourage employer's to conduct such investigations. Finding the "opposition clause" satisfied, it did not reach the parameters of the "participation clause."

Employers conducting internal investigations of any kind should realize that information learned through employee interviews may serve as the basis for future lawsuits. Accordingly, employers are cautioned to ensure that their workplace investigators are properly trained and that decision-makers are aware of any workplace "reporting" that is conducted outside the confines of a formal complaint procedure.