What constitute an employee’s “opposition” to conduct such that it is protected under the law?
Do an employee’s comments during an employer’s internal investigation constitute an “opposition”?
What about comments to a supervisor, even without an internal investigation?
What about comments overheard by another manager, whether within the workplace, such as at a water cooler, or even outside the workplace, such as in a restaurant? Do these acts constitute an employee’s “opposition”?
And finally, at its broadest, what does it mean to “oppose” anything?
These questions were recently addressed by the United States Supreme Court, in a decision that clarifies employees’ rights and employers’ obligations, and which, by providing a certain definition of the term “oppose,” provides practical guidance to both employees and employers regarding potential claims for unlawful retaliation.
By way of background, Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating on the basis of race, color, sex, pregnancy, religion, or national origin. 42 U.S.C. 2000e, et seq. Like many anti-discrimination laws, Title VII also prohibits retaliation against employees. 42 U.S.C.A. § 2000e-3(a). Specifically, Title VII makes it unlawful for an employer to discriminate against an employee either “ because he has opposed any practice made an unlawful employment practice by this subchapter” (“opposition clause”), or “ because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter” (“participation clause”). 42 U.S.C. § 2000e-3(a). This anti-retaliation provision, and the “opposition clause” in particular, were recently put into question by the United States Supreme Court in Crawford v. Metropolitan Government of Nashville and Davidson County, Tenn., __ U.S. __, 129 S.Ct. 846, 172 L.Ed.2d 650 (U.S. Jan 26, 2009).
In 2002, the Metropolitan Government of Nashville and Davidson County, Tennessee (“Metro”), began an internal investigation into rumors of sexual harassment by one of its employees, Gene Hughes. During Metro’s investigation, a human resources officer asked Vicky Crawford, a 30-year employee who had not initiated the investigation, whether she had seen Hughes engage in any “inappropriate behavior.” In response, Crawford described several instances of sexually harassing behavior which she said Hughes had committed against her. After its investigation, Metro took no action against Hughes. However, several months later, it did fire Crawford and two other accusers, claiming in Crawford’s case that she was terminated for “embezzlement.” Crawford, 129 S.Ct. at 849. Crawford subsequently claimed that Metro had retaliated against her as a result of her report of Hughes’s behavior, and she filed a charge with the Equal Employment Opportunity Commission, which was followed by a federal lawsuit in the United States District Court for the Middle District of Tennessee. Id. at 849-850.
District Court & Court of Appeals opinions
In reviewing Crawford’s claim, the district court granted summary judgment for Metro, holding that Crawford could not satisfy Title VII’s “opposition clause” because she never “instigated or initiated” any complaint, but merely “answered questions by investigators in an already-pending internal investigation, initiated by someone else.” Id. at 850 (citation omitted, emphasis added) Thus, Crawford had not “opposed” any unlawful practice.
On appeal, the United States Court of Appeals for the Sixth Circuit affirmed the district court’s dismissal of Crawford’s claim. In a decision that had been cited several times by federal district courts in Ohio, the Sixth Circuit held that Title VII’s opposition clause “demands active, consistent ‘opposing’ activities to warrant . . . protection against retaliation,” whereas Crawford 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.” Id. (quoting 211 Fed. Appx. 373, 376 (6th Cir. 2006)).
Supreme Court opinion
The Supreme Court reversed the Sixth Circuit’s decision, holding that Crawford’s response during Metro’s investigation was in fact covered by the “opposition clause,” as it was “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.” Id. at 850-51.
In addition to its legal implications, what makes the Supreme Court’s opinion in Crawford interesting is that its analysis turned not as much on legal precedent as it did on the definition and interpretation of the word “oppose”: when may it reasonably be said that someone “opposes” something?
According to the Court, Title VII’s opposition clause makes it “unlawful . . . for an employer to discriminate against any . . . employe[e] . . . because he has opposed any practice made . . . unlawful . . . by this subchapter.” The Court continued that because the term “oppose” was not defined in the statute, the term carried its “ordinary” meaning, which the Court found in several dictionaries as: “to resist or antagonize . . . ; to contend against; to confront; resist; withstand.” Id. at 850.
In light of this “ordinary” definition of the term “oppose,” the Court concluded that Crawford’s statement
would certainly qualify in the minds of reasonable jurors as ‘resist[ant]’ or ‘antagoni[stic]’ to Hughes’s treatment, if for no other reason than the point . . . explained by an EEOC guideline: ‘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 the activity.’
Id. at 851. The Court expressly rejected the Sixth Circuit’s holding in Bell v. Safety Grooving & Grinding, in which the Sixth Circuit ruled that just “answering questions” falls short of “opposition,” that the opposition clause “demands active, consistent ‘opposing’ activities to warrant . . . protection against retaliation,” and that an employee must “instigat[e] or initiat[e]” a complaint to be covered.” Id. (quoting Bell, supra, at 610) According to the Supreme Court, “though these requirements obviously exemplify opposition as commonly understood, they are not limits of it.” Id. Indeed, the Supreme Court described the Sixth Circuit’s definition as “freakish”:
‘Oppose’ goes beyond ‘active, consistent’ behavior in ordinary discourse . . . Countless people were known to ‘oppose’ slavery before Emancipation, or are said to ‘oppose’ capital punishment today, without writing public letters, taking to the streets, or resisting the government. And we would call it ‘opposition’ if an employee took a stand against an employer's discriminatory practices not by ‘instigating’ action, but by standing pat, say, by refusing to follow a supervisor’s order to fire a junior worker for discriminatory reasons. 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 a question.
Id. The Supreme Court rejected the argument that its holding would make employers less likely to conduct investigations, since employers still have “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” under the Farragher/Ellerth affirmative defense. Id. at 852.
In a concurring opinion, Justice Alito, with Justice Thomas joining, said that while the term “oppose” does not mean that a complaint must be “instigated or initiated” by the employee, “the primary definitions of the term ‘oppose’ do, however, require conduct that is active and purposive.” Id. at 854. Justice Alito expressed concern that the Court’s definition of “opposition” may include “opinions,” a definition which “embraces silent opposition.” According to Justice Alito, all of the other protected conduct, such as making a charge, testifying, or assisting or participating in an investigation, “requires active and purposive conduct.” Id. Justice Alito said that it was therefore questionable whether “silent” opposition was covered by the “opposition clause,” and that the Court’s definition “would open the door to retaliation claims by employees who never expressed a word of opposition to their employers”:
Suppose, for example, that an employee alleges that he or she expressed opposition while informally chatting with a co-worker at the proverbial water cooler or in a workplace telephone conversation that was overheard by a co-worker. Or suppose that an employee alleges that such a conversation occurred after work at a restaurant or tavern frequented by co-workers or at a neighborhood picnic attended by a friend or relative of a supervisor.
Id. Because retaliation claims are sometimes permitted on the basis of the amount of time lapsed between the purported “opposition” and the adverse employment action alone, Justice Alito said that an employee claiming retaliation may be able to establish causation “simply by showing that, within some time period prior to the adverse action, the employer, by some indirect means, became aware of the views that the employee had expressed.” Nevertheless, because Justice Alito agreed with the decision as it applied to Vicky Crawford, he concurred in the judgment.
Practical Analysis & Advice
Because of the broad interpretation of the term “opposition” that the Supreme Court has now applied in Crawford, and because of the potential applicability of the Court’s definition to other anti-retaliation statutes, it is likely that the Crawford decision will result in an increased number of retaliation claims by employees. In order to reduce the risk of violating the law when conducting internal investigations into allegations of discrimination, employers should remind employees of the company’s own anti-retaliation policy, and that the employees will not be retaliated against in any way for participating in the investigation. Employers should also take the opportunity to remind employees of all available avenues for reporting potential retaliation, whether to the employee’s supervisor, a human resource department, or other management. Finally, employers should be particularly cautious (or meticulous, if need be) about taking any adverse actions against participants in internal investigations. This will hopefully minimize the potential for violations of the law, and by extension the potential for claims by employees.