Defending Retaliation Claims Just Got Harder
On January 26, 2009, the United States Supreme Court held that Title VII's anti-retaliation provisions extend to any employee who cooperates with an employer's internal investigation of harassment or discrimination. The decision in this case, Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee ("Metro"), No. 06-1595, significantly expands the class of employees who will be able to state a claim for retaliation under Title VII of the 1964 Civil Rights Act.
1. The Facts of the Case
Vicky Crawford, a 30-year employee at Metro, was discharged from her Payroll Coordinator position following an investigation into irregularities within the payroll division. Ms. Crawford challenged her termination, alleging she was actually discharged in retaliation for reporting sexually harassing behavior during an internal investigation of her supervisor, Gene Hughes, the Employee Relations Director.
The investigation of Mr. Hughes occurred several months prior to Ms. Crawford's discharge and began when employee in Metro's legal department overheard rumors that Mr. Hughes was sexually harassing female employees. During the course of the investigation, Metro interviewed a number of employees, including Ms. Crawford. Although Ms. Crawford had not previously complained about Mr. Hughes, she informed the investigator that she had observed Mr. Hughes engaging in inappropriate behavior and described several instances of sexually harassing behavior.
Metro ultimately concluded that Mr. Hughes had engaged in inappropriate and unprofessional behavior, but his behavior did not rise to the level of sexual harassment. As such, it recommended that the staff undergo training and education, but took no disciplinary action against Mr. Hughes.
2. The Lower Courts Hold That Ms. Crawford Could Not State a Claim of Retaliation
Following her discharge, Ms. Crawford filed a charge with the Equal Employment Opportunities Commission (EEOC) against Metro, and she subsequently filed a lawsuit in the United States District Court for the Middle District of Tennessee. She claimed that her discharge constituted retaliation under Title VII, because the employment decision was motivated by her participation in the sexual harassment investigation of Mr. Hughes and her opposition to Mr. Hughes' behavior.
Title VII's anti-retaliation provisions state that it is unlawful to discriminate 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." 42 U.S.C. § 2000e-3(a). These prohibitions are respectively known as the "Opposition Clause" and the "Participation Clause."
At the trial court level, the District Court dismissed Ms. Crawford's complaint, because it concluded that Ms. Crawford did not fall within the scope of Title VII's anti-retaliation provisions. On appeal, the United States Court of Appeals for the Sixth Circuit agreed.
According to both courts, the Participation Clause only protects an employee who participates in an internal investigation pursuant to a pending EEOC charge. In this case, no formal EEOC charge had been filed prior to Ms. Crawford's termination. In addition, the courts stated that the Opposition Clause only protects an employee who instigated or initiated a complaint. However, Ms. Crawford merely answered the investigators' questions and passively cooperated in an on-going internal inquiry. She neither complained of Mr. Hughes prior to the investigation nor did she take any further action following the investigation but prior to her dismissal.
3. The Supreme Court Reverses, Ms. Crawford's Retaliation Claim May Proceed
The United States Supreme Court reversed the lower court decisions, holding that the Opposition Clause of Title VII extends to any employee who, during an employer's internal investigation, communicates to his or her employer a belief that the employer (or another employee) has engaged in discriminatory or harassing behavior. Justice Souter, writing for the majority of the Supreme Court, stated that the term "oppose" carries an ordinary meaning of "resisting" and "contending against." The term may be used to speak of someone who answers another's questions and not just to someone who provokes a discussion. According to the Supreme Court, to rule otherwise may cause prudent employees to keep quiet about Title VII offenses, because they would have no remedy if the employer decided to penalize them for the information they provided during an internal investigation.
The Supreme Court did not address whether Ms. Crawford's actions fell within the scope of the Participation Clause. Nevertheless, the case has been remanded back to the District Court and additional appeals may follow.
4. Impact of the Court's Decision
The Supreme Court's decision in Crawford significantly extends the reach of Title VII retaliation claims, making it easier for plaintiffs to bring retaliation claims and harder for defendants to win on motions for summary judgment. By finding that "passive sharing of information" constitutes opposition under Title VII, employers should be on a heightened alert that they may be subject to retaliation claims by employees who never complained of discrimination or harassment, but merely provided information during an internal investigation. Moreover, since state law retaliation claims generally track those under Title VII, employers should be on notice that state law retaliation claims may be similarly expanded.
Despite the additional litigation exposure created by this decision, employers should continue to thoroughly investigate any claims of discrimination and harassment. In Crawford, the Supreme Court emphasized that employers continue to have a "strong inducement to ferret out and put a stop to discriminatory activity" in the workplace, because an employer may be subject to vicarious liability for an actionable hostile work environment created by a supervisor with authority over the employee. Moreover, where no tangible employment action is taken, the employer has an affirmative defense to vicarious liability if it exercised reasonable care to prevent and promptly correct any discriminatory conduct, and the plaintiff-employee failed to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid harm.
For additional information on conducting effective internal investigations or employment litigation avoidance, please contact an attorney in Varnum's Labor and Employment Relations Practice Group, at 616/336-6000.