On January 26, 2009, the United States Supreme Court issued a decision in the case of Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, 172 L.Ed. 2d 650, 2009 U.S. LEXIS 870 (2009), which overturned a notable 6th Circuit precedent in retaliation cases under Title VII. In Crawford, the Court held that Title VII's prohibition on retaliation protects "an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer's internal investigation." This holding has very real implications for employers; especially those previously operating under the 6th Circuit's prior rule refusing to extend retaliation protection to such employees.

The facts in Crawford were the following: Due to reports of inappropriate behavior, Respondent-employer began an informal sexual harassment investigation with respect to a supervisory employee. During the course of that investigation, Petitioner-employee was questioned. She informed Respondent that she had been sexually harassed by the supervisor under investigation and two other employees also came forward with similar allegations. The supervisor was not ultimately disciplined as a result of the investigation, however, and after the close of the investigation, the three employees who had indicated that they had been harassed were terminated, allegedly for reasons unrelated to the investigation. Petitioner's termination was ostensibly for embezzlement.

Petitioner filed a charge of retaliation with the EEOC and subsequently filed a federal lawsuit alleging the same. The district court granted the employer’s summary judgment motion, as it found that Petitioner had not engaged in any activity protected by either prong of Title VII's anti-retaliation provision. Initially, Petitioner's statements to Respondent were held not to be protected by the "Participation Clause" due to the fact that the investigation during which they were made was not undertaken pursuant to a pending EEOC charge. Additionally, in what would become the focus of Petitioner's appeal to the Supreme Court, the lower court held that Petitioner's statements were not protected under the "Opposition Clause" because she never "instigated or initiated" any complaint of harassment.

The Supreme Court reversed that decision, holding that Petitioner's statements, and other statements made under similar circumstances, constitute protected activity under the "Opposition Clause" of Title VII. Essentially, the Court adopted an EEOC guideline which states: "[w]hen 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." In fact, according to the Court, it is irrelevant whether that communication initiated a complaint or was merely proffered during the course of an independent investigation. While it has yet to be seen whether this holding will be further extended to cover less formal employee communications, Crawford clearly has applications in the workplace of the present.

The practical lessons to be learned from the Supreme Court's decision in Crawford should be merely an affirmation of good employer practices that already exist -- namely, thorough investigation and proper documentation. However, this fact does not lessen the importance of these principles. First, Crawford reinforces the fact that, when disciplining an employee who has, in the past, raised concerns about unlawful discrimination and/or harassment, employers must tread carefully. This does not mean that such employees cannot be disciplined, or even terminated, just that extra care should be taken to document the true reason for the action taken as well as the evidence supporting that decision. While this cannot totally insulate the employer against the possibility of a lawsuit, it will certainly provide a solid foundation for a strong defense in case such a lawsuit is filed. Given the increased number of individuals who are now held to be protected by Title VII's anti-retaliation provision (as this class of individuals will now include more than merely those who have instigated investigations) the need to be proactive in this area is paramount.

Additionally, the Crawford case further reaffirms the importance of thoroughly investigating employee complaints of unlawful discrimination and/or harassment. This includes not only the initial complaint which prompted the investigation, but also any additional allegations that arise during the course of that investigation. Further, employers may want to consider expanding their responses to employee allegations discovered through less formal channels, even if no formal complaint or request for investigation is made. In addition to the obvious benefits of such thorough investigations (a better understanding of the goings-on in the workplace, an opportunity to head off inappropriate behavior before it results in concrete harm, and the affirmative defense provided in the event of harassment suits), Crawford illustrates how this additional attention to detail can aid an employer in other ways. For example, the employer in Crawford is now faced with the prospect of further litigating its former employee's claim of retaliatory discharge. One can be sure that that employer would be more confident in its chances of success if it can show that the statements made by the employee were fully investigated and that either: (1) appropriate action was taken; or (2) the allegations were discovered to be unfounded. In this case, evidence of a full and fair investigation of all statements made during the investigation would aid the employer in showing that it had a legitimate, non-retaliatory reason for discharging the employee that was unrelated to her allegations. The same would be true in any such case.