• Supreme Court Decision Makes Way for Increased Retaliation Claims
  • March 26, 2009 | Author: Kari Knight Stevens
  • Law Firm: Blank Rome LLP - Philadelphia Office
  • Recently, the Supreme Court of the United States handed down another in a series of decisions paving the way for increased retaliation claims against both private and public employers. In its decision, Crawford v. Metropolitan Gov’t of Nashville & Davidson County, Tenn., 129 S. Ct. 846 (2009), the Court, unanimously reversing a decision by the United States Court of Appeals for the Sixth Circuit, held that individuals involved in a company internal investigation of discrimination or harassment complaints are entitled to bring retaliation claims against the company if they are subjected to an adverse employment action during or after the investigation. This decision resolves a split among the federal courts, some which protected individuals in internal investigations and others that did not.

    Supreme Court Decision

    In Crawford v. Metropolitan Gov’t of Nashville & Davidson County, Tenn., Crawford brought a retaliation claim against her employer, asserting that she was fired following an interview with company investigators regarding a co-worker’s harassment claim during which she disclosed that she was also the victim of harassment in the workplace. During this internal interview, she described several instances of sexual harassment directed towards her by the company’s employee relations director. Following her interview, Crawford was terminated for allegations of embezzlement. Two other accusers were also terminated. No action was taken against the employee relations director.

    The trial court dismissed Crawford’s retaliation claim, finding that her responses during the internal investigation interview did not constitute the protected activities of “opposition” or “participation” under Title VII of the Civil Rights Act of 1964, as amended. The Sixth Circuit upheld the trial court’s dismissal, holding that “opposition” requires an employee to instigate the investigation or otherwise engage in “active, consistent” resistance to alleged harassment. The Sixth Circuit further held that there is no protected activity where the internal company investigation is not conducted as part of a pending EEOC Charge of Discrimination.

    The Supreme Court, in reversing the Sixth Circuit’s decision, found that the protections of Title VII’s “opposition clause” apply to employees who cooperate in internal company investigations of harassment and discrimination, just as they apply to those who file a formal complaint with the employer or a Charge with the EEOC. In response to the employer’s argument that a finding that Crawford’s actions constituted “opposition” would discourage employers from conducting internal investigations, the Supreme Court responded that employers already have a strong incentive to find and address discriminatory conduct in the workplace as a result of the Supreme Court’s prior decisions, over ten years ago, in Burlington Industries Inc. v. Ellerth and Faragher v. Boca Raton. Ellerth and Faragher afford employers an affirmative defense to Title VII liability based on alleged harassment if the employers promptly investigate and take effective remedial action to correct harassment claims. The Supreme Court reasoned that to uphold the Sixth Circuit’s ruling would “undermine the Ellerth-Faragher scheme.”

    Implications of the Decision

    As a result of the Crawford decision, retaliation claims will continue to rise. This will especially be true if courts interpret the Supreme Court’s findings broadly to extend to those employees who do not provide information in internal investigations but are in “silent opposition,” i.e., do not communicate their views to their employers through “purposive conduct.” As a result, employers should act now to evaluate their general anti-discrimination and anti-harassment policies and their internal investigation protocols in response to discrimination or harassment claims. Employers should also create an action plan to respond to additional accusations of harassment or discrimination revealed during the internal investigation process. Employers who terminate an employee prior to taking appropriate action in response to his or her complaint of harassment or discrimination, regardless of the context, greatly increase their risk of legal exposure for retaliation should litigation arise.