- Supreme Court Extends the Reach of Title VII's Antiretaliation Provision
- February 26, 2009 | Authors: Lawrence C. DiNardo; Jacqueline M. Holmes; Sarah B. McClure
- Law Firms: Jones Day - Chicago Office; Jones Day - Washington Office
Employers are prohibited from retaliating against employees who report gender or race discrimination during the course of an employer-initiated internal investigation, a unanimous Supreme Court ruled last week. Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, No. 06-1595, slip op. (January 26, 2009), available at http://www.supremecourtus.gov/opinions/08pdf/06-1595.pdf. In so doing, the Court reversed the Sixth Circuit’s judgment that protection under the antiretaliation provision of Title VII was limited to employees who actively oppose workplace misconduct by, for example, initiating or instigating a complaint.
After hearing rumors that Gene Hughes, the employee relations director for the Metropolitan Government of Nashville and Davidson County, Tennessee ("Metro"), had been sexually harassing employees, Metro commenced an internal investigation. During the course of that investigation, a Metro human resources officer questioned Vicky Crawford, a Metro employee, regarding whether she had witnessed "inappropriate behavior" on the part of Hughes. In response, Crawford described several instances in which she had been sexually harassed by Hughes.
Shortly after the investigation was completed, Metro fired Crawford and two employees who, like Crawford, reported being subjected to Hughes’ lewd conduct. Although Metro claimed that Crawford was being fired for embezzlement, Crawford contended that she was terminated for reporting Hughes’ sexual harassment. Crawford sued, alleging that her termination violated Title VII’s antiretaliation provision. That provision consists of two separate clauses: 1) the "opposition clause," which prohibits employers from discriminating against an employee "because he has opposed any practice made an unlawful employment practice by [Title VII]"; and 2) the participation clause, which prohibits employers from discriminating against an employee "because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]." See 42 U.S.C. § 2000e–3(a). Crawford’s lawsuit accused Metro of violating both clauses when it terminated her.
The District Court ruled in favor of Metro, holding that Crawford could not satisfy the opposition clause because she had not "instigated or initiated any complaint," but had "merely answered questions by investigators in an already-pending internal investigation initiated by someone else." Moreover, the District Court determined that Crawford’s claim under the participation clause failed because Metro’s internal investigation was not conducted in response to a pending EEOC charge. On appeal, the Sixth Circuit affirmed the dismissal of Crawford’s claim on the same grounds, adding that the opposition clause "demands active, consistent ‘opposing’ activities to warrant . . . protection against retaliation."
Reversing the judgment of the Sixth Circuit, the Supreme Court held that the antiretaliation provision of Title VII protects not only employees who initiate or instigate a complaint of discrimination, but also those who report workplace discrimination during an employer’s internal investigation. Because the Court concluded that Metro’s conduct violated the opposition clause of Title VII’s retaliation provision, it declined to rule on whether Metro’s conduct violated the participation clause as well.
In reaching its conclusion, the Court considered, but ultimately rejected, Metro’s argument that extending the protection of the antiretaliation provision to employees who simply respond to an employer’s question would discourage employers from taking proactive measures—such as initiating the type of internal investigation conducted by Metro—to eliminate workplace discrimination. The Court reasoned that employers are sufficiently motivated to root out discrimination on their own accord by virtue of prior Supreme Court decisions that hold an employer vicariously liable for workplace discrimination under certain circumstances unless the employer can show that it has "exercised reasonable care to prevent and correct promptly any" discriminatory conduct and that the employee "unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer[.]" See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. Boca Raton, 524 U.S. 775 (1998). Further, the Court observed that the Sixth Circuit’s interpretation of the opposition clause was inconsistent with Title VII’s primary objective of avoiding harm to employees insofar as it would discourage employees from answering an employer’s questions regarding whether discrimination had occurred.
In light of Crawford, employers should ensure that management understands that federal law prohibits retaliating against employees for complaining about workplace discrimination, regardless of the nature and circumstances of the complaint. Specifically, management must recognize that an employee does not have to file a formal charge of discrimination with either the EEOC or a state agency to be protected from retaliation; it is enough if the employee simply reports an incident of discriminatory conduct to management. The Court’s decision should not, however, discourage employers from continuing to actively investigate allegations of workplace discrimination and take appropriate measures to eliminate all forms of workplace discrimination.