Court ruling targets employee retaliation

Q. Mark, a human resources manager, conducted an investigation into rumors of sexually harassing behavior by a supervisor, Joe Smith. During the investigation, Mark asked employee Wendy whether she had witnessed any inappropriate behavior by Smith. Wendy disclosed to Mark sexually suggestive comments and gestures made to her and others. No action was taken against the supervisor following the internal investigation. Another supervisor, Steve, approached Mark and expressed a desire to terminate Wendy for performance issues. Does the company need to be concerned about a retaliation claim by Wendy even though she never directly made a sexual harassment complaint against Smith and did not initiate the prior internal investigation?

A. A recent case from the U.S. Supreme Court suggests the company may wish to think twice before disciplining or terminating Wendy.

On Jan. 26, the court in Crawford v. Metropolitan Government of Nashville and Davidson County, extended the anti-retaliation provision under Title VII of the Civil Rights Act of 1964 to employees who disclose harassing or discriminatory conduct when answering questions during an employer’s internal investigation. The Crawford decision follows a line of Supreme Court cases extending protections to employees bringing retaliation claims. 

In 2002, the Metropolitan Government of Nashville and Davidson County began looking into rumors of sexual harassment by a director, Gene Hughes. As part of an internal investigation, a Metro human resources officer interviewed 30-year employee Vicky Crawford. During that interview, Crawford was asked whether she had witnessed any “inappropriate behavior” by Hughes. In response, Crawford described various incidents of sexually harassing behavior, including sexually suggestive comments, gestures and touching. Two other employees also reported Hughes’ sexually harassing behavior at work. Metro took no action against Hughes but did fire Crawford and the other two accusers soon after finishing the investigation.

Crawford filed a charge with the Equal Employment Opportunity Commission claiming Metro retaliated against her for reporting Hughes’ harassing and discriminatory behavior during the internal investigation. Metro claimed it had terminated Crawford for embezzlement and further claimed that Crawford never complained of harassment.

Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to discriminate against any of its employees because the employee has opposed any practice made unlawful under Title VII or because the employee has made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing under Title VII.

The first prohibition is known as the “opposition clause” and the second prohibition as the “participation clause.” In Crawford, the Supreme Court focused on Title VII’s opposition clause that prohibits retaliation against an employee who has opposed any practice made unlawful under that statute.

Metro argued that Crawford’s activities were outside the protections of the statute because they were not “active, consistent” opposing “activities to warrant … protection against retaliation.” Metro took the position that because Crawford had not initiated a complaint against Hughes and was only responding to questions asked of her by her employer during the employer’s internal investigation, she was not protected.

Reminder to employers

The Supreme Court rejected Metro’s argument and ruled that filing a complaint is not a prerequisite to protection from retaliation under Title VII. It found that the term “oppose” goes beyond “active, consistent” behavior in ordinary discourse.

Relying on the ordinary meaning of “oppose,” the Supreme Court noted that there is “no reason to doubt that a person can ‘oppose’ an activity by responding to someone else’s question just as surely as by provoking the discussion” on her own. It further noted that there is nothing in Title VII that “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.”

The Supreme Court held Crawford’s statements about Hughes were covered by the opposition clause under Title VII as an “ostensibly disapproving account of sexually obnoxious behavior” toward her. It reversed the dismissal and remanded the case for further proceedings.

In reaching this conclusion, the court reminded employers that they are subject to a “strong inducement to ferret out and put a stop to any discriminatory activities” in the workplace.

It noted that since its decisions in Burlington Industries Inc. v. Ellerth (1998), and Faragher v. Boca Raton (1998), employers have been prompted “to adopt and strengthen procedures for investigating, preventing, and correcting discriminatory conduct.” The Supreme Court further noted that to require a higher bar for retaliation claims may undermine the “Ellerth-Faragher scheme” and Title VII’s objective of avoiding harm to employees.

Jennifer Parent, a director in the Litigation Department of McLane, Graf, Raulerson & Middleton, can be reached at 603-628-1360 or