PUBLICATIONS

Supreme Court Expands Protections For Employees Under Title VII

2/4/2009

The United States Supreme Court has once again interpreted Title VII (the cornerstone federal anti-discrimination statute) broadly to protect employees who participate in harassment and discrimination investigations. In Crawford v. Metropolitan Gov. of Nashville, the Supreme Court held on January 26, 2009, that it is unlawful for an employer to retaliate against an employee for responding to questions during an employer's investigation of harassment and discrimination. Although this case sheds new light on the "opposition" clause of Title VII, it really should come as no surprise to employers, particularly those operating in California.

By way of background, Vicky Crawford was a 30-year employee of the Metropolitan Government of Nashville and Davidson County ("Metro") in Tennessee. In 2002, Metro investigated rumors of sexual harassment by Metro School District's employee relations director, Gene Hughes. During the course of the investigation, Crawford was asked by a Metro human resources officer whether she had witnessed inappropriate sexual behavior by Hughes. Crawford responded by describing several instances of sexually harassing behavior by Hughes. Two other employees also reported being sexually harassed by Hughes. After the investigation, Metro took no action against Hughes. Instead, Metro fired Crawford and the two other accusers.

Crawford filed a lawsuit against Metro, claiming that it retaliated against her for reporting Hughes' behavior during the company's internal investigation. Crawford asserted that Metro violated Title VII's opposition clause, which protects an employee who has opposed a discriminatory practice or filed a charge, testified, or participated in an investigation. The trial court dismissed Crawford's case, concluding that Crawford could not satisfy the opposition clause because she had not "instigated or initiated any complaint," but instead "merely answered questions" asked by investigators in an already-ongoing investigation.

The Supreme Court disagreed, ruling that an employer cannot retaliate against an employee who opposes discrimination, including answering questions during an internal investigation. The Court agreed with the EEOC 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."

The Supreme Court's decision construes the anti-retaliation provisions of Title VII broadly in favor of employee protection. The practical effect of the case is that more employees will have "protected" status on the basis of statements made during workplace investigations. Therefore, employers who take adverse employment action against an employee who has participated in an internal investigation should take particular care to ensure that the employer has evidence to support a lawful reason for the challenged employment action.

In addition, before "closing the file" on any workplace investigation of discrimination, harassment, or other protected conduct or status, a careful employer will always make sure that no employee has any basis for claiming to have been retaliated against for participating in that workplace investigation. Otherwise, the Crawford decision underscores the potential for "follow-on" litigation, even by those who merely participated in an investigation by disclosing their own observations or experiences in response to the employer's inquiries.