Crawford v. Nashville: Title VII Protects Employee Who Answers Question in Internal Investigation

In Crawford v. Nashville, ___ U.S. ___, 129 S.Ct. 846 (2009), the U.S. Supreme Court reversed the district and circuit courts and held that Title VII anti-retaliation provisions extend to employees who answer questions about discriminatory activity in an employer’s internal investigation. The decision is in line with the very purpose of anti-discriminatory statutes, which is to protect the employee from discriminatory activity and encourage employees to disclose such activity honestly without retribution.

Background

In 2002, the Metropolitan Government of Nashville and Davidson County (“Nashville”) began an internal investigation into allegations of sexual harassment against Dr. Gene Hughes, the employee-relations director for the Metro School District. Apparently several female employees had expressed concern about being harassed by Hughes.

As part of the investigation, the Human Resources Department interviewed several women, including 30-year employee Vicky Crawford, who described several instances of sexual harassment by Hughes. During the interview, Crawford stated that she was afraid that her participation in the interview would cause her to lose her job.

Ultimately, the investigation report concluded that Hughes had acted inappropriately but the full extent of the harassment could not be corroborated, so no disciplinary action was taken against Hughes. However, after the conclusions of the investigation were released, Crawford and the other women interviewed during the investigation were fired. Crawford was fired on charges on embezzlement, which were later “found to be unfounded.”

Crawford filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) and sued her former employer, alleging retaliation under Title VII of the Civil Rights Act of 1964. Both the district court and Sixth Circuit determined that Crawford was not protected by Title VII for two reasons: 1) Crawford’s statements in the investigation did not constitute “opposition” to illegal conduct, as required by Title VII, since she did not initiate the investigation. 2) Crawford was not protected against retaliation because the investigation was internal and no charge had been filed with the EEOC. Crawford appealed to the U.S. Supreme Court. Crawford v. Nashville, ___ U.S. ___, 129 S.Ct. 846 (2009).

Defining the scope of Title VII “opposition”

In writing for the Supreme Court majority, Justice Souter defines two activities protected by Title VII, saying that section 704(a) “makes it unlawful ‘for an employer to discriminate against any… employe[e]’ who (1) ‘has opposed any practice made an unlawful employment practice by this subchapter’ (opposition clause), or (2) ‘has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter’ (participation clause).” 129 S.Ct at 848.

When the Sixth Circuit heard the case, it held that the “opposition clause” required “active, consistent” opposing, which Crawford had not done, as she had not even initiated the investigation. But the Supreme Court disagreed with the Sixth Circuit’s interpretation.

Because “oppose” is not defined in the statute, it carries its ordinary dictionary meaning – to resist or contend against. “Thus, a person can ‘oppose’ by responding to someone else’s questions just as surely as by provoking the discussion,” further “we would call it ‘opposition’ if an employee took a stand against an employer’s discriminatory practices not by ‘instigating’ action, but by standing pat, say, by refusing to follow a supervisor’s order to fire a junior worker for discriminatory reasons.” 129 S.Ct. at 851. Applying this normal definition to the facts, the Court found that Crawford did in fact “oppose” the alleged conduct. Because Crawford’s conduct was covered by the “opposition clause,” the Court did not reach Crawford’s “participation clause” argument.

Aligning the case with the public policy behind the anti-retaliation provision

The Supreme Court determined that the statute protected from retaliation anyone who participates in investigations and proceedings “under this title,” not merely under section 706(b) or as part of an EEOC investigation. Accordingly, the anti-retaliation provision extends to an employee, like Crawford, who speaks out about discrimination during an employer’s internal investigation.

Nashville claimed that this interpretation would cause employers to refrain from raising questions about possible discrimination, because a retaliation charge would be too easy for an employee to raise if things subsequently went badly for that employee. But the Court disagreed, noting that employers have a strong inducement to find and put an end to discriminatory activity in their operations as the result of Burlington Industries Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. Boca Raton, 524 U.S. 775 (1998). Those two cases hold “[a]n employer … subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with … authority over the employee.” Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807.

The Sixth Circuit’s interpretation would undermine both the Ellerth-Faragher¬ principle as well as the “primary objective” of protecting employees from discriminatory activity. 129 S.Ct. at 852. Indeed, under the Sixth Circuit rule, prudent employees may elect not to answer any questions about discrimination for fear of retaliation, thereby providing the employer with a defense that the affected employee failed to “take advantage of… preventative or corrective opportunities provided by the employer” – a situation the court characterized as a “catch-22.” 129 S.Ct. at 852-853.

Conclusion

The Supreme Court’s decision in Crawford will likely have implications beyond Title VII claims, as federal Title VII law often informs judicial interpretations of anti-retaliation provisions in similar federal statutes, such as the Americans with Disabilities Act and the Age Discrimination in Employment Act, as well as in state courts that often look to federal law for guidance. The decision makes a strong statement in favor of protecting employees, which is indeed the purpose of these statutes.

In his concurrence, Justice Alito raised concerns that are not fully addressed by the Crawford decision. While Alito disagrees with the Sixth Circuit’s “active, consistent” requirement for “opposition,” he urges that opposition should at least be “active and purposive.” He worries that the majority opinion could “open the door to retaliation claims by employees who never expressed a word of opposition to their employers” but claim that they “opposed” the conduct in informal ways, such as “water cooler” chat. 129 S.Ct. at 854. Noting the 100% increase in retaliation charges filed with the EEOC between 1992 and 2007, Alito fears that an “expansive interpretation of protected opposition conduct would likely cause this trend to accelerate.” 129 S.Ct. at 855. Such a result could prove unnecessarily expensive for the parties associated with those charges and lawsuits, and burdensome on the courts and EEOC.

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Jeremy J. Gray

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