In 2002, Metropolitan Government of Nashville and Davidson County, Tennessee (Metro), began looking into rumors of sexual harassment by one of its employees, Gene Hughes. A member of Metro’s human resources department asked plaintiff Vicky Crawford (a 30-year Metro employee) whether she had witnessed any of Hughes’ “inappropriate behavior.” Crawford, who was not the subject of the investigation and who had not previously complained of sexual harassment by Hughes, responded that Hughes had actually engaged in inappropriate behavior with her, which she described in detail. A few months after the investigation was completed, Crawford was terminated allegedly for embezzlement.
Crawford filed suit against Metro, alleging that Metro retaliated against her in violation of Title VII for her participation in the sexual harassment investigation. To state a prima facie claim for retaliation under Title VII, an employee must show that she either “opposed” a discriminatory employment practice or “participated” in a statutorily covered activity under Title VII. Metro moved for summary judgment arguing that Crawford could not sustain a claim for retaliation because she neither “opposed” a discriminatory employment practice (since she had never complained about Hughes’ conduct) nor had she “participated” in a statutorily covered activity under Title VII. Crawford argued that although she never reported Hughes’ conduct, her response to Metro’s human resources employee during the investigation constituted “protected activity” under Title VII’s prohibition against retaliation because she “opposed” the harassment by describing it in response to her employer’s questions.
The United States District Court for the Middle District of Tennessee entered summary judgment in favor of Metro and the Six Circuit Court of Appeal affirmed. The Supreme Court granted certiorari.
In finding for Crawford, the Supreme Court found that the primary objective of the anti-retaliation provision under Title VII is avoiding harm to employees. The Court held that for the purposes of Title VII’s anti-retaliation provision, an employee can “oppose” discrimination in the workplace by responding to an employer’s question about the discrimination at issue. The Court made clear that in order to “oppose” a discriminatory act, an employee need not engage in “active” or “consistent” resistance to it. In fact, Justice Souter who wrote for the majority, said that the required opposition would encompass “someone who has taken no action at all to advance a position beyond disclosing it.”
Justice Alito wrote a separate concurring opinion emphasizing his understanding that “the Court’s holding does not and should not extend beyond employees who testify in internal investigations or engage in analogous purposive behavior.” Justice Alito stressed that the Court’s holding should not extend Title VII protection to an employee’s “silent opposition” to harassment or to mere conversations with a co-worker “at the proverbial water cooler” that may be subsequently relayed to the employer.
WHAT IS EXPECTED FROM THE RULING?
It is anticipated that the Supreme Court’s holding in Crawford will now open the door for retaliation claims by investigation participants claiming they were “retaliated” against during or after an investigation. The lesson for employers is to treat all information it receives from employees (whether through a report/complaint, or in response to questions during an investigation) seriously and act upon it appropriately. Employees who participate in a workplace investigation should not suffer any adverse employment action because of such participation.