Supreme Court: Title VII Anti-Retaliation Covers Responses to Internal Harassment Investigation

January 30, 2009

The United States Supreme Court has ruled that Title VII of the Civil Rights Act of 1964 (the federal anti-discrimination and anti-harassment statute) protects an employee from retaliation even when the employee merely reports discrimination in response to an employer’s questions during an internal investigation of  discrimination or harassment complaints made by others.  It is not necessary for the employee herself to come forward to initiate a report of discrimination or harassment for protection against retaliation to be available.  Crawford v. Metropolitan Government of Nashville, No. 06-1595 (Jan. 26, 2009).

The Court in Crawford reversed a ruling by the Sixth Circuit Court of Appeals, which had held that in order to be protected as opposing illegal discrimination or harassment, an employee must actively, consistently oppose such activities. The Sixth Circuit had ruled that because the employee in Crawford did not instigate or initiate any complaint prior to answering questions in the employer’s internal investigation, or take any further action to oppose discrimination following her participation in the investigation and before she was fired, she was not protected against retaliation under Title VII.

The Supreme Court disagreed with the lower court, stating that there is “no reason to doubt” that a person can “oppose” activity that is illegal under Title VII “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 2002, Metropolitan Government of Nashville and Davidson County, Tennessee (Metro) began investigating rumors that the Metro school district’s employee relations director, Gene Hughes, was sexually harassing employees.  During the investigation, a Metro human resources officer asked Vicky Crawford, a 30-year employee, whether she had witnessed “inappropriate behavior” by Hughes.  In response to the question, Crawford described several incidents of sexually harassing behavior, including: 1) in response to Crawford’s greeting, “Hey Dr. Hughes, what’s up?,” Hughes grabbed his crotch and said, “[Y]ou know what’s up,” 2) Dr. Hughes had repeatedly “put his crotch up to her window,” and 3) on one occasion Dr. Hughes had entered her office and “grabbed her head and pulled it to his crotch.”

Two other employees also reported being harassed by Hughes.   Metro took no action against Hughes but had fired Crawford and the other two accusers soon after finishing the investigation. In Crawford’s case, Metro said the termination was for embezzlement.

 The District Court dismissed Crawford’s Title VII retaliation claims on a motion for summary judgment, holding that Crawford could not satisfy the requirements of the “opposition clause” because she had not instigated or initiated any complaint, and the Court of Appeals for the Sixth Circuit affirmed the ruling. The U.S. Supreme Court reversed and remanded the case.

The Title VII anti-retaliation provision has two clauses:

• “Opposition clause” – this makes it illegal to discriminate against an employee because he or she has opposed any practice made an unlawful employment practice by Title VII.
• “Participation clause” – this makes it illegal to discriminate against an employee because he or she has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII. 

Because the Supreme Court in Crawford reversed the Sixth Circuit’s decision based on its holding that answering questions in Metro’s internal investigation could be retaliation under the opposition clause, the Supreme Court did not address the issue of whether the same activity could also be retaliation under the participation clause.   

Justice Samuel Alito in his concurring opinion cautioned that the decision should not be seen as granting Title VII protection to “silent opposition” to alleged harassment or discrimination.  Otherwise, significant problems would surface as to proving if and when an employer became aware of the opposition.  It remains to be seen how broadly or narrowly the lower courts interpret the decision.