In an unanimous 9-0 decision, the U.S. Supreme Court today ruled Title VII protects workers from retaliation after the employee responds to questions in an internal investigation. The Court held that Title VII protects those workers who speak out on discrimination during company-ordered investigations, not simply those investigations that arise from an actual discrimination claim.
The case of Crawford v. Metro Government of Nashville (download here), arises from the lower court’s granting of summary judgment — so the court was required to view all facts in a light most favorable to the Plaintiff. The case involved the firing of a 30-year employee allegedly for embezzlement, though that was after she participated in an investigation arising from a co-worker’s complaints of harassment by another employee.
From a purely legal perspective, the court discusses what has been termed the "opposition" clause of Title VII and finds that too narrow of a reading of that term would lead to strange results:
There is, then, no reason to doubt that a person can “oppose” by responding to someone else’s question 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.
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…. The appeals court’s rule would thus create a real dilemma for any knowledgeable employee in a hostile work environment if the boss took steps to assure a defense under our cases. If the employee reported discrimination in response to the enquiries, the employer might well be free to penalize her for speaking up. But if she kept quiet about the discrimination and later filed a Title VII claim, the employer might well escape liability, arguing that it “exercised reasonable care to prevent and correct [any discrimination] promptly” but “the plaintiff employee unreasonably failed to take advantage of … preventive or corrective opportunities provided by the employer.” Nothing in the statute’s precedent supports this catch-22.
Because of this, the court never reaches a second question of whether the employee’s conduct was "participation". (Title VII retaliation provisions can be raised under either an "opposition" or a "participation" prong.)
For employers, the case reinforces messages that all claims of discrimination and harassment should be promptly and thoroughly investigated. (In fact, the court revisits the landmark Farragher/Ellerth decisions to emphasize that fact.) In addition, the employer should remind employees that they will not be retaliated against merely for participating in an investigation — regardless of whether there is an active discrimination claim pending or whether this is a mere internal investigation on discrimination.
And, as always, employers should consider consulting with outside counsel during all facets of the investigation to ensure compliance with the applicable law.
An interesting concurrence by Justice Alito was also written to suggest that the Court’s decision should not be read too broadly.
An interpretation of the opposition clause that protects conduct that is not active and purposive would have important practical implications. It would open the door to retaliation claims by employees who never expressed a word of opposition to their employers. To be sure, in many cases, such employees would not be able to show that management was aware of their opposition and thus would not be able to show that their opposition caused the adverse actions at issue. But in other cases, such employees might well be able to create a genuine factual issue on the question of causation. Suppose, for example, that an employee alleges that he or she expressed opposition while informally chatting with a co-worker at the proverbial water cooler or in a workplace telephone conversation that was overheard by a co-worker. Or suppose that an employee alleges that such a conversation occurred after work at a restaurant or tavern frequented by co-workers or at a neighborhood picnic attended by a friend or relative of a supervisor. …
The question whether the opposition clause shields employees who do not communicate their views to their employers through purposive conduct is not before us in this case; the answer to that question is far from clear; and I do not understand the Court’s holding to reach that issue here. For present purposes, it is enough to hold that the opposition clause does protect an employee, like petitioner, who testifies about unlawful conduct in an internal investigation.