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SCOTUS Returns a Victory for Employees

Well, since I have been reporting on employment law developments, thought I would keep it going with a report about the unanimous opinion by the Supreme Court of the United States in Crawford v. Metropolitan Gov’t of Nashville and Davidson County, No. 06-1595, where the Court refused to narrowly apply the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964.   That provision prohibits an employer from discharging an employee because she “has opposed any practice made an unlawful employment practice by this subchapter.”

The underlying facts in Crawford are simple enough.  The plaintiff, Vicky Crawford, was questioned by her employer as part of an investigation into alleged sexual harassment by a superior.  When asked if she had witnessed anything, Ms. Crawford responded that, in fact, she had herself been subjected by this supervisor to harassing acts.  The investigation ended with no action against the supervisor, but with the employer discharging Ms. Crawford and two other employees who had alleged sexual harassment.

The Sixth Circuit Court of Appeals had ruled for the employer based on its legal determination that Ms. Crawford, by simply responding to the investigator’s questions instead of actively voicing concerns on her own initiative before the investigation, had not engaged in “active, consistent opposition” (which was the requirement adopted in the Sixth Circuit) and could not recover under Title VII”s anti-retaliation provisions.

In its Official Syllabus, the Supreme Court’s holding reversing the Sixth Circuit’s “opposition” requirement is summarized as follows:

The antiretaliation provision’s protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation. Because “oppose” is undefined by statute, it carries its ordinary dictionary meaning of resisting or contending against. Crawford’s statement is thus covered by the opposition clause, as an ostensibly disapproving account of Hughes’s sexually obnoxious behavior toward her. “Oppose” goes beyond “active, consistent” behavior in ordinary discourse, and may be used to speak of someone who has taken no action at all to advance a position beyond disclosing it. Thus, a person can “oppose” by responding to someone else’s questions just as surely as by provoking the discussion. 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 asked a question. Metro unconvincingly argues for the Sixth Circuit’s active, consistent opposition rule, claiming that employers will be less likely to raise questions about possible discrimination if a retaliation charge is easy to raise when things go badly for an employee who responded to enquiries. Employers, however, have a strong inducement to ferret out and put a stop to discriminatory activity in their operations because Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 , and Faragher v. Boca Raton, 524 U. S. 775 , 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.” The Circuit’s rule could undermine the Ellerth-Faragher scheme, along with the statute’s ” ‘primary objective’ ” of “avoid[ing] harm” to employees, Faragher, supra, at 806, for if an employee reporting discrimination in answer to an employer’s questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses. Because Crawford’s conduct is covered by the opposition clause, this Court does not reach her argument that the Sixth Circuit also misread the participation clause. Metro’s other defenses to the retaliation claim were never reached by the District Court, and thus remain open on remand. Pp. 3-8.

Although he agreed with the judgment favoring Ms. Crawford, Justice Alito, with Justice Thomas joining, filed a concurring opinion, where he expressed his reservations about the Crawford opinion’s impact if it is broadly interpreted by the lower trial courts.  In this regard, Justice Alito noted:

I write separately to emphasize my understanding that the Court’s holding does not and should not extend beyond employees who testify in internal investigations or engage in analogous purposive conduct.

Justice Alito went on to explain the parameters and scope of the question presented in Crawford and its limited holding, as follows:

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.

Whether the district court judges will broaden Crawford’s impact will be seen in future years.  Even as it now stands, some commentators see this opinion as already broadening the scope of retaliation law by opening the door for an investigation witness to sue if they are subjected to adverse action during or after the investigation, even when the employer already had plans to terminate the employee on other, legitimate and non-retaliatory grounds (i.e., the employee may now be able to survive summary judgment as a result of making an allegation during the investigatory interview process).

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