On January 26, 2009, the United States Supreme Court issued its opinion in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, No. 06-1595 (Argued October 8, 2008; decided January 26, 2009). The Supreme Court unanimously held that the anti-retaliation provision of Title VII reached an employee who “speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation.”
The factual context of Crawford is relatively simple. In 2002, the Metropolitan Government of Nashville (“Nashville”) began exploring rumors of sexual harassment by none other than the Metropolitan School District’s Employee Relations Director, Gene Hughes. As part of that investigation, a human resources officer for Nashville interviewed Vicki Crawford (“Crawford”) and others. The HR officer asked Crawford whether she had witnessed any “inappropriate behavior” involving Hughes. Crawford had witnessed such behavior, some of which was directed at her, and she reported on her experiences. Crawford described various incidents where Hughes had grabbed his crotch and/or made inappropriate comments to her. Two other employees also reported harassing behaviors by Hughes.
At the conclusion of Nashville’s investigation, Nashville fired Crawford, ostensibly for “embezzlement.” Nashville also fired the two other individuals who provided information regarding Hughes’ conduct. Nashville did not take any action against Hughes.
Crawford filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”), complaining of retaliation. She then filed suit in federal court. Crawford accused Nashville of violating both Title VII’s “opposition clause” and “participation clause.” As described by the high court, Title VII’s anti-retaliation provision makes it “an unlawful employment practice for an employer to discriminate against any of his employees . . .  because he has opposed any practice made an unlawful employment practice by this subchapter, or  because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a).
The federal District Court granted summary judgment for Nashville. The trial court found that opposition clause activity must be linked to the employee’s own complaint, and that the participation clause activity must be linked to a pending EEOC charge. The Sixth Circuit affirmed the dismissal of Crawford’s lawsuit on essentially the same grounds. The Supreme Court accepted review of the case to resolve the conflict among the federal circuit courts on these issues.
The Supreme Court’s Analysis
The Supreme Court’s analysis focused exclusively on the arguments relating to the opposition clause issues. Because the high court found for Crawford with respect to this clause, it concluded that it was not necessary for it to address Crawford’s arguments under the participation clause.
The Court began its analysis by noting that because the word “oppose” is not defined in the statute, it should be given its ordinary meaning. Relying on Webster’s dictionary, the Court cited to the definition, “to resist or antagonize, . . ; to contend against; to confront; resist; withstand.” The Supreme Court then observed that “[t]he statement Crawford says she gave to [the HR officer] is thus 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 high court also looked to the EEOC’s Compliance Manual for guidance, as augmented by the EEOC’s amicus brief in support of Crawford. “‘When 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 that activity.’” (Citations omitted.)
The Supreme Court’s analysis also was grounded in common sense, seeking to avoid anomalous results for virtually identical behavior. “There is, then, 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 her a question.”
Finally, the nation’s high court addressed Nashville’s argument, also supported by amici memoranda, that a rule supporting Crawford’s interpretation of the opposition clause would deter companies from conducting appropriate investigations into wrongful workplace conduct because of the fear that such investigations could lead to potential exposure. The Court found this argument “unconvincing,” inasmuch as it disregarded the clear message of the Faragher/Ellerth holdings and the affirmative defense those companion cases established for employers. As the Court stressed, “Employers are thus subject to 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.” The Court also expressed concerns about the practical consequences of leaving Crawford and similarly situated individuals without a remedy. In particular, the Court was concerned about the potential chilling effect that allowing retaliation against these individuals would likely create.
There are a number of practical lessons that can be derived from the Crawford decision.
- First, employers need to understand the Crawford holding – an employee who describes employment practices prohibited by Title VII in response to a company investigation or inquiry, has engaged in conduct protected by the opposition clause of Title VII’s anti-retaliation provision.
- Second, as a result of the bullet-point above, companies should move cautiously and thoughtfully when taking adverse action (e.g., discharge, suspension, reduction in compensation, transfer, diminution in responsibility, etc.) toward an employee who has engaged in conduct within the scope of the statute.
- Third, as in other types of retaliation cases, the closer the temporal proximity between the protected conduct and the adverse action, the easier it will be for the employee to argue that the two events are not just coincidental, but causally related.
- Fourth, carefully examine the underlying motivations of a decision-maker who wishes to discharge someone who has just opposed a prohibited employment practice. Generally, the accused should be isolated from any decision involving adverse action against the accuser. (In the Crawford case, it is perplexing that Nashville fired the three women who, in response to the City’s inquiries, provided information that their supervisor had engaged in harassing conduct. The opinion does not reveal whether their supervisor was involved in the firing decision, but if so, that too would be a problematic fact.)
- Fifth, if an employer finds it necessary to take adverse action against someone who has opposed an employment practice proscribed by Title VII, document the decision. Recognize that it may be years before the justification is presented to a judge or jury. Ensure that the company is able to articulate clearly and persuasively why it acted as it did. (In Crawford, for example, Nashville initiated its investigation into the harassment rumor in 2002. According to the opinion, Crawford was discharged for embezzlement. Since the case reached the Supreme Court in the context of the appeal of a summary judgment determination on the scope of the statute, no facts are provided regarding the wrongful conduct in which Crawford allegedly engaged. Now, nearly seven years later, it will be incumbent upon Nashville to explain the basis for its decision to fire Crawford. If Nashville did not carefully document its decision, this will be a near impossible task.)
- Sixth, although the Supreme Court did not reach the issues surrounding the participation clause, I recommend that companies give that provision an expansive interpretation as well. The statutory language is broad and, as the Crawford decision illustrates, courts are protective of individuals who even arguably engage in protected conduct. All of the bullet points set forth above should be considered when determining how to treat an individual who has “participated in any manner in an investigation, proceeding, or hearing,” regardless of the nature of the employee’s involvement.
- Seventh, as the Supreme Court noted, it was deferential to the principles set forth in the EEOC’s Compliance Manual. This suggests that employers too, in particular the Human Resources or Employee Relations Departments, should familiarize themselves with these compliance manuals.
- Finally, the high court reiterated in Crawford the importance of the Faragher/Ellerth affirmative defense. Companies should ensure that they have established appropriate policies and effectively implement those policies to ensure they can take advantage of the important defense provided by Faragher/Ellerth.