On January 26, 2009 the United States Supreme Court issued its latest decision broadening the circumstances under which employees can pursue retaliation claims against their employers under Title VII of the Civil Rights Act of 1964. In Crawford v. Metropolitan Government of Nashville and Davidson Cty., the high court held that the "opposition clause" of the antiretaliation provision of Title VII "extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer's internal investigation."
The employer conducted an internal investigation into rumors of possible sexual harassment. During the investigation, Vicky Crawford and two other employees were asked whether they had witnessed any inappropriate behavior. All three employees responded that they had been sexually harassed by the employee relations director, Gene Hughes. After finalizing the investigation, the school district took no action against Mr. Hughes but fired Ms. Crawford and the two other employees. Ms. Crawford then filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) alleging the school district retaliated against her for reporting Mr. Hughes' sexually obnoxious behavior. She later filed a federal lawsuit over Mr. Hughes' behavior.
The antiretaliation provision of Title VII has two clauses: (1) the opposition clause and (2) the participation clause. The opposition clause makes it unlawful for an employer to discriminate against any employee who has opposed any unlawful employment practice. The participation clause makes it unlawful for an employer to discriminate against any employee who has made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing. Ms. Crawford claimed the school district violated both clauses.
The Crawford Decision
The Supreme Court held that Ms. Crawford's statement during the internal investigation that she was sexually harassed by Mr. Hughes was covered by the opposition clause, because "a person can 'oppose' by responding to someone else's questions 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."
In addition to its overall holding, there are two other significant aspects of the Supreme Court's decision. First, the Supreme Court expressly rejected the school district's argument that if it decided the case in favor of Ms. Crawford, employers would avoid conducting internal investigations into on-the-job harassment and discrimination in fear of possible retaliation claims. The Supreme Court dismissed the argument as unconvincing and explained that under the Ellerth/Faragher affirmative defense, employers have "a strong inducement to ferret out and put a stop to any discriminatory activity in their operations" as a way to avoid vicarious liability.
Second, the Supreme Court expressly limited its decision to the opposition clause and refused to address Ms. Crawford's argument that the Sixth Circuit misread the participation clause as well. This means that, as of now, the appeals court's position that there is no violation of the participation clause where the employer's internal investigation is not conducted pursuant to a pending EEOC charge remains intact for employers within its jurisdiction.
The Bottom Line
Although the Supreme Court's decision in Crawford may subject some employers to additional retaliation claims, this should not discourage employers from continuing to conduct internal investigations into possible on-the-job discrimination. Failure to investigate and remedy harassing conduct can leave an employer exposed to liability. Employers should consult with counsel before taking any employment action against an individual involved in any way with a workplace harassment investigation. More generally, employers should consult with counsel to be certain their policies are effective for addressing harassment and other inappropriate workplace conduct and for preventing possible retaliation. The Crawford decision further highlights the importance for employers of carefully documenting and recording the reasons supporting their employment decisions.