In Crawford v. Metropolitan Gov. of Nashville, No. 06-1595 (U.S. Jan. 26, 2009), the U.S. Supreme Court unanimously held that an employee who tells an employer about prohibited conduct during the employer's internal investigation has engaged in a protected activity under Title VII of the Civil Rights Act of 1964, regardless of whether the employee has done anything else to protest or oppose discrimination.
The Crawford Decision
The employer, Metropolitan Government of Nashville and Davidson County school system, commenced an internal investigation after hearing multiple rumors regarding sexual harassment complaints from several of its employees against a particular supervisor. The plaintiff-employee, Vicky Crawford, was interviewed during the internal investigation because she worked closely with the accused supervisor. During her interview, Ms. Crawford told the interviewer that she had been sexually harassed at work on several prior occasions. She was terminated a few months later.
Title VII of the Civil Rights Act of 1964 (42 U. S. C. §2000e-3(a)) makes it unlawful “for an employer to discriminate against any ... employe[e]” who (1) “has opposed any practice made an unlawful employment practice by this subchapter” (opposition clause), or (2) “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter” (participation clause). The federal appellate court rejected Ms. Crawford’s retaliation claim, finding that her simply responding to the employer's questions during an internal investigation was not the type of activity protected by Title VII's anti-retaliation provision. The federal appellate court held that the opposition clause demanded “active, consistent” opposing activities, and found that the participation clause did not cover the internal investigation because it was not conducted by the Equal Employment Opportunity Commission pursuant to a Title VII charge.
The Supreme Court disagreed. In its unanimous opinion, the Court stated that Title VII should not be construed so narrowly. The Court reasoned that because the word “opposed” is undefined by the statute, the Court would apply the ordinary dictionary meaning. The Supreme Court found that Ms. Crawford's conduct was covered by Title VII's opposition clause and therefore, her conduct constituted protected activity under the statute. The Court observed that it would be a “freakish rule” to prevent retaliation against an employee only when that employee speaks out on his/her own initiative. The Court stated that ultimately the goal is to discourage employee silence. Failing to protect statements similar to Ms. Crawford's would cause more employees to remain silent. Because the Supreme Court found that Ms. Crawford's conduct was covered by the opposition clause, the Court did not address Ms. Crawford's argument that the lower court also misread the participation clause.
Lessons for Employers
Employers should remember the Crawford decision when they conduct internal investigations. An employee who participates in an investigation by the employer is protected against retaliation for the statements he/she makes during the investigation. In general, employers should be careful not to take adverse action against employees who report discrimination or harassment, regardless of the employee's reporting method (e.g., formal EEOC complaint versus a statement made during an internal investigation). Adverse action taken against such employees should be pursuant to the company's practices consistently applied to all employees – including those who never made statements opposing alleged discrimination.