On October 8, 2008, the U.S. Supreme Court heard oral argument in Crawford v. Metro Gov’t of Nashville & Davidson County, Tenn., U.S. No. 06-1595. Crawford involves the scope of the protection afforded employees by Title VII’s prohibition against retaliation. The case is important for all employers who investigate complaints of harassment or other discrimination covered by Title VII.

Vicky Crawford had been approached by a human resources representative investigating a sexual harassment complaint against a human resources director, Gene Hughes. Crawford cooperated with the investigation and reported that Hughes had harassed her and other employees. Hughes was not disciplined. Crawford was discharged six months later for alleged drug use and embezzlement. Three other employees who had cooperated with the investigation were also fired. Crawford sued under Title VII.

The U.S. Court of Appeals for the Sixth Circuit found that because Crawford’s actions in cooperation with company investigators were not “overt opposition” to suspected unlawful employment practices, they were not protected under Title VII. Neither did Crawford’s action qualify for protection as “participation” in a “proceeding” under Title VII, the court ruled, because there was no pending EEOC charge.

At the oral argument in the Supreme Court, Justice Ginsburg stated that it was clear to her that Crawford’s statements to investigators constituted opposition to harassment. Justice Scalia disagreed. Scalia expressed an unwillingness to give legal protection to statements objecting to harassment that are not linked to actual workplace behavior. Scalia suggested that to allow such claims would “reduce incentives” for employers to fix their own problems.

The United States Solicitor General, in a friend-of-the-court brief, has sided with Crawford that cooperating with company investigators is legally protected activity under Title VII. There is a good possibility that the Supreme Court may reverse the Sixth Circuit’s decision and find Crawford’s conduct to be protected under Title VII.

What This Means for Employers

Should the Supreme Court reverse the Sixth Circuit’s decision: 

  • Employers must be careful not to discriminate against an employee who participates in an internal investigation or who openly opposes harassment. 
  • When an employer conducts an internal investigation of harassment and does not terminate the alleged harasser, the employer must clearly caution the alleged harasser not to retaliate against any employee who participated in the investigation or who openly opposed the alleged harassment.