Statements Opposing Discrimination During Internal Investigations Protected Under Title VII: US Supreme Court Docket
Continuing its recent trend of broadening Title VII’s anti-retaliation provision, the US Supreme Court unanimously ruled January 26, 2009, that Title VII retaliation protections extend to employees who speak out about discrimination not of their own accord, but in answering questions during an employer-ordered internal investigation. Justice David H. Souter wrote the unanimous opinion for the court with Justices Samuel A. Alito Jr. and Clarence Thomas concurring in the judgment. ( Crawford v Metro Government of Nashville & Davidson County, Tenn EXE: http:.hr.cch.com, Dkt No 06-1595).
Vicki Crawford, a 30-year school district employee, who was discharged eight months after she cooperated in her employer’s internal sexual harassment investigation of the district’s employee relations director, was protected under Title VII’s "opposition clause." The "opposition clause" prohibits an employer from retaliating against an employee who opposes any practice made unlawful by Title VII. Reversing the Sixth Circuit Court of Appeals (90 EPD ¶43,076), the High Court held that while Crawford did not actually initiate a complaint of discrimination, it was her statement made in response to the school district’s internal investigation that nonetheless opposed the discrimination the supervisor engaged in. Because Crawford’s conduct was covered by the opposition clause, the Court declined to address whether her conduct was also governed by the anti-retaliation provision’s participation clause. Ultimately, the Court remanded the matter because the district court never reached the employer’s other defenses to Crawford’s retaliation claim.
This is not the first case in which the High Court has recently expanded Title VII’s anti-retaliation provision. In its 2006 decision, Burlington Northern & Santa Fe Ry Co v White ( 87 EPD ¶42,394 EXE: 87EPDP42,394 ), the US Supreme Court cleared up a split among the circuit courts when it established a broad framework for interpreting Title VII’s anti-retaliation provision. In Burlington, the Court held that employer actions are retaliatory if they: (1) "would have been materially adverse to a reasonable employee or job applicant;" and (2) "could well dissuade a reasonable worker from making or supporting a charge of discrimination." Among other cases in which the Supreme Court has construed anti-retaliation provisions broadly are: (1) CBOCS West, Inc v Humphries ( 91 EPD ¶43,195 LK:NON: STLAWALL 91EPDP43195 ) in which the Court held that Section 1981 encompasses claims for retaliation; and (2) Gomez-Perez v Potter ( 91 EPD ¶43,196 LK:NON: STLAWALL 91EPDP43196 ) in which the Court held that Age Discrimination in Employment Act protects federal employees from retaliation for filing age bias complaints.
Background. When allegations began to surface from several employees that the employee relations director had engaged in inappropriate behavior, the Metropolitan Government of Nashville and Davidson County, Tennessee’s assistant director of human resources was tasked with investigating their complaints of sexual harassment. Among those employees asked to be interviewed as part of the internal investigation was Crawford. Crawford told investigators the director sexually harassed her and other employees. Ultimately, the investigation concluded that the director engaged in "inappropriate and unprofessional behavior," though not to the extent of Crawford’s allegations. Although no disciplinary action was ultimately taken against the director, Crawford alleged that she and three other employees who also made statements in connection with the investigation were discharged. While her employer claimed that she was discharged for embezzlement and drug use, Crawford asserted that those charges were "ultimately found to be unfounded." Crawford filed suit under Title VII, alleging retaliation. The district court granted summary judgment to the employer.
The Sixth Circuit affirmed, holding that an employee who voluntarily cooperates in her employer’s internal investigation of harassment does not engage in protected activity under either the opposition or participation clause of Title VII’s anti-retaliation provision. Crawford’s actions were not opposition activity because she did not initiate or bring any complaint before her employer began investigating the director, nor did she file a complaint following the investigation and prior to her discharge. Crawford simply cooperated in her employer’s investigation of the director by appearing for questioning at the request of the investigators, responding to their questions and relating unfavorable information about the director. In addition, the Sixth Circuit held that participation in an internal investigation initiated by an employer in the absence of any pending EEOC charge is not a protected activity. In this case, the employer’s investigation was internal in nature —no EEOC charge had been filed at the time of the investigation or prior to the Crawford’s discharge.
In granting certiorari, the Supreme Court agreed to address the following question: "Does the anti-retaliation provision of section 704(a) of Title VII of the 1964 Civil Rights Act protect a worker from being dismissed because she cooperated with her employer’s internal investigation of sexual harassment?"
Supreme Court. Reversing the Sixth Circuit, the Supreme Court held that Crawford’s statement made during the internal investigation constituted opposition to an unlawful practice. Diving into the common meaning of the term "oppose," because it is undefined by statute, the Court wrote that it carries its ordinary dictionary meaning of "to resist or antagonize...; to contend against; to confront; resist; or withstand." Based on that definition, Crawford’s statement made during the internal investigation is covered by the opposition clause as an "ostensibly disapproving account" of the employee relations director’s sexually obnoxious behavior toward her, explained the Court. "‘Oppose’" goes beyond "‘active, consistent’" behavior in ordinary discourse, and may be used to speak of someone who has taken no action at all to advance a position beyond disclosing it," wrote the Court. "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 asked a question."
In so holding, the High Court rejected a contrary rule asserted by the county government that would require employees to engage in "active, consistent" behavior in order to warrant protection, stating that such a rule would be inconsistent with common usage of the term "oppose." Instead, the Court accepted the rule set forth in the EEOC’s Compliance Manual, which states that "[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." (§§8-II-B(1)).
The Court also discussed the policy implications of requiring such a rule: "Employers are thus subject to 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." In addition, the Court found it hard to see why the Ellerth/Faragher defense would be undermined. "If it were clear law that an employee who reported discrimination in answering an employer’s questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses against themselves or against others." This could lead to a chilling affect in the workplace, as it may deter employees from wanting to whistleblow against harassment and discrimination. "The possibility that an employer might someday want to fire someone who might charge discrimination traceable to an internal investigation does not strike us as likely to diminish the attraction of an Ellerth/Faragher affirmative defense," wrote the Court.
Because Crawford’s conduct was covered by the opposition clause, the Court did not reach her argument that the Sixth Circuit misread the participation clause as well. However, because the county government’s motion for summary judgment raised several defenses to the retaliation charge besides the scope of the two clauses, and the district court never reached those issues, the Supreme Court remanded the matter.
Concurrence. In a concurrence written by Justice Samuel Alito, to which Justice Clarence Thomas joined, Alito wanted to make clear their understanding that the opinion "does not and should not extend beyond employees who testify in internal investigations or engage in analogous purposive conduct."
Reprinted with permission. © CCH
(Submitted Jan. 28, 2009)
<p>Statements Opposing Discrimination During Internal Investigations Protected Under Title VII US Supreme Court Docket Continuing its recent trend of broadening Title VII’s anti retaliation provision, the US Supreme Court unanimously ruled January 26, 2009, that Title VII retaliation protections extend to employees who</p>
Statements Opposing Discrimination During Internal Investigations Protected Under Title VII: US Supreme Court
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