by Ron Chapman Jr., Esq., Ogletree Deakins, Dallas
On Jan. 26, the U.S. Supreme Court once again expanded the ability of employees to sue for retaliation.
With seven justices in agreement (and the remaining two concurring), the court held that an employee who answers a question about a fellow employee’s improper conduct during an internal sexual harassment investigation is engaging in “protected activity” under Title VII of the Civil Rights Act.
As a result, employers will probably face more retaliation claims.
Retaliation against nonvictim?
The case is Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, No. 06-1595, U.S. Supreme Court, 2009.
Vicky Crawford brought the case. The 30-year employee of the metropolitan government of Nashville claimed she was fired in retaliation for answering an HR officer’s questions about whether she had witnessed another employee engage in “inappropriate behavior.” Specifically, in response to questions from the HR officer conducting the harassment investigation, Crawford reported several incidents of misconduct by the alleged harasser. However, she did not affirmatively complain about his behavior.
The local government took no action against the alleged harasser. But it did fire Crawford, citing embezzlement as the reason for her discharge.
After receiving a right-to-sue letter from the EEOC, Crawford filed a lawsuit against Nashville and Davidson County, alleging unlawful retaliation under Title VII.
The statute’s anti-retaliation provision has two clauses that prohibit discrimination against an employee:
- “Because he has opposed any practice made an unlawful employment practice by this subchapter, or
- “Because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this subchapter”
The first is referred to as the “opposition clause.” The second is the “participation clause.”
The trial judge dismissed the lawsuit, and the 6th Circuit Court of Appeals affirmed, finding that Crawford neither opposed unlawful activity nor participated in a proceeding under Title VII.
Supremes weigh in
Crawford then asked the U.S. Supreme Court to review the case. Because the 6th Circuit’s decision conflicted with those of other circuits (particularly with respect to the “opposition clause”), the Supreme Court agreed to hear the case.
The justices held that Crawford’s conduct was covered by the statute’s opposition clause. That allowed her to sue under Title VII. The court ruled, “The statement Crawford says she gave to [the HR officer] is ... covered by the opposition clause, as an ostensibly disapproving account of sexually obnoxious behavior toward her by a fellow employee, an answer she says antagonized her employer to the point of sacking her on a false pretense.”
The High Court rejected Nashville and Davidson County’s argument that, if employees such as Crawford are covered under Title VII’s anti-retaliation provision, employers will be unlikely to conduct internal investigations. The court found that argument “unconvincing,” concluding employers already have “a strong inducement to ferret out and put a stop to any discriminatory activity in their operations as a way to break the circuit of imputed liability.”
Thus, the case was sent back to the 6th Circuit to consider several other defenses raised by the employer to Crawford’s retaliation claim.
What it means for employers
The Supreme Court’s ruling is neither surprising nor particularly controversial, based on the facts of the case.
The key question, however, is how the ruling will be interpreted and applied to different fact patterns in the future. Will other forms of passive opposition suffice to establish a claim for retaliation? Both the concurring opinion and a strict reading of the majority opinion suggest the answer is no.
Even so, you can bet that aggressive plaintiffs’ lawyers will try to extrapolate this ruling to protect other forms of conduct that, as of now, are insufficient to establish a retaliation claim.
Author: Ron Chapman Jr. is a shareholder in Ogletree Deakins’ Dallas, Texas, office and is board certified inby the Texas Board of Legal Specialization. He represents employers in all areas of labor and employment law, including employment agreements and policies, discrimination, harassment, retaliation, wage and hour, noncompetition and nondisclosure covenants.
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