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U.S. Supreme Court Confirms Broad Protection of Employee Opposition to Discrimination
February 5, 2009

In Crawford v. Metropolitan Government of Nashville, No. 06-1595 (Jan. 26, 2009), the Supreme Court reviewed a case in which an employer, investigating rumors of sexual harassment by a supervisor, asked an employee, Vicky Crawford, whether she had witnessed any inappropriate behavior.  Ms. Crawford responded by describing several instances of harassing behavior by the supervisor toward herself.  The employer took no action against the supervisor, but soon after finishing the investigation, it discharged Ms. Crawford and two other employees who had also cooperated with the investigation and reported being sexually harassed.  The employer said that Ms. Crawford was fired for embezzlement, but Ms. Crawford claimed she was fired in retaliation for her report of being harassed, and she filed suit under Title VII’s anti-retaliation provisions. 

Title VII prohibits an employer from taking action against an employee because he or she “has opposed any practice made an unlawful employment practice by this subchapter.”  42 U.S.C. § 2000e-3(a).  In Crawford, the Sixth Circuit Court of Appeals held that this “opposition clause” required active, consistent activities in opposition to warrant protection against retaliation, and that Ms. Crawford’s act of simply answering questions in response to the employer’s investigation was not sufficiently active opposition to be covered by Title VII.

The Supreme Court disagreed, holding that Ms. Crawford’s report of harassment in cooperation with the internal investigation was protected under the opposition clause.  The fact that she had responded to the employer’s questions rather than initiating the report herself did not change the fact that her statements were made in opposition to perceived sexually harassing behavior of a supervisor.

Although the case leaves some issues unresolved, it is clear that if an employee is involved in a harassment or discrimination complaint or investigation, whether the employee initiates the complaint or simply cooperates with the investigation, the employer should not discharge that employee for his or her involvement in the investigation, and certainly not for reporting -- whether in response to questions or on the employee’s own initiative -- discriminatory or harassing behavior.  Employers should make sure they have fully-documented, legitimate, nondiscriminatory business reasons for any adverse employment action.  In addition, employers may want to revise policies to include non-retaliation for an employee’s good faith participation or opposition to harassment or discrimination in the workplace.

If you have any questions or want assistance reviewing harassment and discrimination policies, please call or e-mail any member of our Employment Group.

John A. Zaloom