On Monday, January 26, 2009, the U.S. Supreme Court ruled in a 9-0 decision that Title VII of the Civil Rights Act of 1964 ("Title VII") protects an employee who speaks out about discrimination during an employer's investigation into another employee's complaint of discrimination from retaliation.
In Crawford v. Metro. Gov't of Nashville and Davidson County, U.S. No. 06-1595 (January 26, 2009), the petitioner, Vicky Crawford, claimed her employer, Metropolitan Government of Nashville and Davidson County, Tennessee ("Metro"), fired her because she reported, during her employer's internal sexual harassment investigation, that she too was sexually harassed by the subject of the investigation. Crawford, who was a thirty-year employee, did not initiate a complaint of sexual harassment. Instead, while responding to questions about a complaint initiated by another employee, Crawford simply admitted to being sexually harassed by the same supervisor. Metro took no action against the alleged harasser; however, it terminated Crawford's employment shortly after concluding its investigation based upon what it claimed was her embezzlement.
Crawford sued Metro in federal court in Tennessee, alleging that she had been terminated in retaliation for her reporting the harassing behavior. The trial court, however, found in favor of Metro, concluding that Title VII's protection against retaliation for opposing discrimination or participating in an investigation of discrimination by the U.S. Equal Employment Opportunity Commission did not apply to merely answering questions in an internal employer investigation. The U.S. Court of Appeals for the Sixth Circuit affirmed the trial court's ruling, finding that an employee who wishes to claim retaliation for opposing discrimination must have engaged in "active, consistent" activity and, in fact, must have initiated the internal complaint of discrimination. The Supreme Court agreed to hear the case because the Sixth Circuit's decision was in conflict with other appellate courts that had considered the issue.
The Supreme Court, in an opinion written by Justice David Souter, concluded Crawford's admission to her employer of being sexually harassed during the investigation was sufficient to gain protection from retaliation under Title VII. The Court dismissed the idea that a person must initiate an internal complaint in order to be protected under Title VII's anti-retaliation provision. Instead, the Court defined the requirement that an employee must "oppose" unlawful discrimination more broadly to include answering questions about alleged unlawful discrimination. To find otherwise, in Justice Souter's view, would create a "freakish" rule protecting employees who report discrimination on their own initiative but not those who make the same report when answering questions from their employer. Justice Souter also found that to exclude conduct such as Crawford's from the protection against retaliation would undermine prior Supreme Court decisions encouraging employers to investigate and remedy harassment complaints.
Justice Samuel Alito, joined by Justice Clarence Thomas, wrote a concurring opinion to emphasize his belief that the Court's opinion is limited to circumstances where the employee's "opposition" occurs during an internal investigation into unlawful discrimination or other "analogous purposive conduct." The concurrence addressed concerns that an employee's non-purposeful statements could create retaliation liability for unwitting employers.
The Crawford decision highlights the need for employers to be careful in avoiding "collateral" claims arising from its investigation of discrimination and harassment. Employers should protect themselves from a potential increase in retaliation claims resulting from this Supreme Court decision by carefully documenting when employees, during internal investigations, claim to have suffered similar unlawful treatment. Such "me too" claims should be treated as new and distinct complaints of unlawful discrimination subject to independent investigation and protection from retaliation.