On January 26, 2009, the U.S. Supreme Court unanimously held in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee (No. 06-1595), that the “opposition clause” of Title VII’s anti-retaliation provision protects from retaliation an employee who speaks out about discrimination not on her own initiative, but in the course of answering questions during an employer’s internal investigation. The “opposition clause” of Title VII’s anti-retaliation provision makes it unlawful “for an employer to discriminate against any . . . employe[e]” who “has opposed any practice made an unlawful employment practice by this subchapter.”  

The case was brought by Vicky Crawford, a 30-year employee of the Metropolitan Government of Nashville and Davidson County, Tennessee (Metro), who claimed that Metro retaliated against her for reporting inappropriate behavior during an employer-initiated internal investigation. Metro initiated the investigation in response to rumors about sexual harassment by a Metro School District supervisor. Crawford was one of the employees interviewed; during her interview, she was asked whether she had witnessed inappropriate behavior by the supervisor, and she responded by disclosing a number of instances of sexually harassing behavior. The district court granted summary judgment to Metro on the theory that because Crawford’s conduct was limited to cooperating with Metro’s investigation and relating unfavorable information during her interview, it did not constitute “active” opposition and therefore was not protected activity under the opposition clause. The district court also held that Crawford’s disclosure was not protected under the “participation” clause of Title VII’s anti-retaliation provision because no EEOC charge had been filed and there was thus no ongoing Title VII investigation. The U.S. Court of Appeals for the Sixth Circuit affirmed.  

In a unanimous decision, the Supreme Court reversed. The question before the Court was whether simply disclosing sexually harassing behavior in response to questions during an employer-initiated internal investigation constitutes “oppos[ing]” an unlawful practice. Justice Souter, writing for seven justices, relied on the ordinary dictionary definition of the term “oppose” and held that disclosure was sufficient to constitute opposition. The Court reasoned that the term “oppose” can naturally be used “to speak of someone who has taken no action at all to advance a position beyond disclosing it.” Thus, “[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 the activity.” Crawford’s statement constituted protected opposition, as it reflected “an ostensibly disapproving account of sexually obnoxious behavior toward her by a fellow employee.”  

The Court rejected the argument that interpreting the opposition clause in this manner would discourage employers from conducting thorough internal investigations. The Court found this argument unpersuasive given the incentive created by Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 (1998), and Faragher v. Boca Raton, 524 U. S. 775 (1998), for employers “to ferret out and put a stop to any discriminatory activity in their operations as a way to break the circuit of imputed liability.” In the Court’s view, a ruling in favor of Metro would lead prudent employees to keep quiet about Title VII offenses against themselves or others out of fear of retaliation for disclosing improper behavior. Because the Court held that Crawford’s conduct was covered by the opposition clause, it did not reach the question whether it was also covered by the participation clause.  

Justice Alito, joined by Justice Thomas, filed a concurring opinion to emphasize that the Court’s holding was limited to employees “who testify in internal investigations or engage in analogous purposive conduct.” According to Justice Alito, the Court’s opinion should not be read to hold that silent opposition is sufficient, or that disclosure of improper behavior in an informal conversation with a co-worker at the proverbial water cooler would suffice either. Justice Alito explained that in his opinion, private expressions of disapproval, even if an employer learns of them, should not trigger the protections of the opposition clause.  

Retaliation claims have been on the rise for at least a decade; this decision is likely to continue that pattern. Employers should be particularly careful not to act in a manner that could be construed as retaliatory against employees who engage in protected activity, including those who disclose discriminatory or harassing behavior during internal investigations.  

In wake of this ruling, employers should take care to:  

  • ensure your organization has effective anti-harassment and anti-retaliation policies;
  • train your supervisors and employees to ensure compliance with your anti-harassment and anti-retaliation policies;  
  • plan and conduct internal investigations carefully, consulting with in-house or outside counsel as appropriate concerning such issues as the proper scope of the investigation;  
  • require those employees who have engaged in protected activity, including disclosing information in internal employer-initiated investigations, to report any perceived instances of retaliation immediately so that such claims can be investigated promptly, corrective action taken if needed, and litigation avoided; and
  • consult with experienced in-house or outside counsel before taking any adverse action against an employee who has recently engaged in protected activity, including making disclosures in internal investigations.