The United States Supreme Court Clarifies Title VII Retaliation - Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee

January 26, 2009

Today, the United States Supreme Court expanded protection for employees in retaliation cases under Title VII. Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee.  Specifically, the Court held that statements made by an employee in answering routine questions during an internal investigation are "opposition" activities that can support a retaliation claim. Title VII (42 U.S.C. § 2000e-3(a)) provides that it is unlawful for an employer to retaliate against an employee who "has opposed any practice made an unlawful practice by [Title VII]." The term "opposed" was previously undefined. Crawford holds that an employee can "oppose" an employer’s unlawful action even if the employee does not initiate a complaint about the unlawful practice, but merely participates in an investigation.

In Crawford, the Defendant investigated rumors regarding whether an employee was sexually harassing subordinates. As part of the investigation, the employer interviewed Vicky Crawford. In response to questioning, Crawford noted numerous instances that the employee had harassed her. Crawford was terminated shortly after the interview for allegedly embezzling money. She then filed a lawsuit alleging that she had been retaliated against for complaining about sexual harassment during the investigation. The District Court granted the employer’s summary judgment stating that Crawford did not "oppose" any unlawful practice because she did not initiate a complaint about conduct prohibited by Title VII. The Sixth Circuit affirmed, stating that opposition "demands active, consistent opposing activities," and that mere disclosure or response to questions is insufficient.

The Supreme Court overturned the Sixth Circuit, finding that "opposition" may include resisting or disclosing prohibited conduct. The Court found there was no doubt that "a person can ‘oppose’ by responding to someone else’s question just as surely as by provoking the discussion."

The Court noted that the Sixth Circuit opinion created a "freakish" complaint procedure where employees would have protection if they complained of conduct, but would have no protection if an employer initiated the questioning about the same conduct. The Court worried that that if an employer could penalize employees for reporting misconduct during an investigation, fewer employees would respond to investigations, and even more harassment would go unreported.

This holding is an important warning for employers. Under Crawford, seemingly any communication of unlawful activity, in any form, can later form the basis of a retaliation lawsuit. Federal law no longer differentiates between "formal' complaints of unlawful conduct and mere disclosure of conduct during an investigation. Accordingly, employers should treat any communication of unlawful conduct as it would a formal complaint of misconduct and tread lightly. (In 2005, the California Supreme Court decided Yanowitz v. L’Oreal, USA, Inc., discussed in a previous E-Update [August 15, 2005 E-Update], which arguably provides similar protection for employees under California law).

This e-update was authored by Joe Connaughton and Michael Etchepare.  For more information, or questions, please contact Mr. Connaughton, Mr. Etchepare or any Paul, Plevin attorney at (619) 237-5200.

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