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The Supreme Court Expands Reach of Title VII’s Retaliation Provision

On January 26, 2009, the United States Supreme Court issued a decision which expands protections to employees. In Crawford v. Metropolitan Government of Nashville and Davidson County, the Supreme Court held that employees who respond to their employers’ inquiries during an internal investigation are protected from retaliation under Title VII.


The Metropolitan Government of Nashville and Davidson County ("Metro") started an investigation after hearing sexual harassment rumors about the school district's Employee Relations Director. During the investigation, the Human Resources Officer asked employee Vicky Crawford whether she had ever witnessed any “inappropriate behavior” on the part of the Director. Ms. Crawford described several incidents of sexual harassment. Metro terminated Crawford’s employment shortly thereafter.

Ms. Crawford filed a claim against Metro in the U.S. District Court for the Middle District of Tennessee, claiming that she was terminated in retaliation for her answers during the investigation. Ms. Crawford claimed that her responses about the Director’s alleged harassment constituted both opposition against a practice made unlawful by Title VII and participation in a Title VII investigation. The District Court disagreed and granted Metro’s Motion for Summary Judgment. The U.S. Court of Appeals for the Sixth Circuit affirmed the District Court’s decision holding that in order to be protected under Title VII a plaintiff must engage in some type of overt act in opposition to the harassment (i.e., make a complaint). The Sixth Circuit further stated that simply participating in an internal investigation was not enough; an employee must participate in an investigation pending before the EEOC.

The Supreme Court’s Decision

The Supreme Court, in a majority opinion written by Justice Souter, reversed the Sixth Circuit's decision with respect to the opposition clause. The Court did not rule on the meaning of the participation clause because it found that Ms. Crawford's conduct was covered by the opposition clause.

Title VII’s anti-retaliation provisions prohibit discriminating against an employee because that employee has opposed any practice made an unlawful employment practice by Title VII (“opposition clause”) or because the employee has made a charge, testified, assisted or participated in any manner in an investigation, proceeding, or hearing under Title VII (“participation clause”). The Supreme Court disagreed with the Sixth Circuit’s determination that the meaning of “oppose” requires active or consistent behavior. Rather, the Supreme Court determined employees can “oppose” by responding to their employers’ questions just as they can by provoking the discussion. Therefore, a response describing inappropriate behavior can qualify as resistant, antagonistic, and as an “opposition.”

The Court found that the Sixth Circuit's approach might discourage employees, fearful of retaliatory discharge, from reporting Title VII offenses. The Court rejected Metro’s argument that the expansion of the opposition clause would discourage employers from investigating complaints of harassment or discrimination, for fear of resulting retaliation lawsuits. The Court reasoned that the fact that employers can avoid liability by showing that they have exercised reasonable care to prevent and correct improper conduct, and that the plaintiff unreasonably failed to report the conduct, will continue to motivate employers to investigate and prevent discriminatory activity in their workplaces.

Bottom Line

Employers should continue to investigate all complaints of harassment or discrimination immediately. Prompt investigations can be a valuable defense against lawsuits and charges. Employers, however, must now be aware that those individuals questioned during the investigation process are entitled to Title VII retaliation protection. Therefore, employers should ensure that along with those who make complaints, investigation participants are not retaliated against. This doesn’t mean employers cannot terminate a deserving employee. Employers just need to make sure they properly document all adverse actions and that they are ready to defend their reasoning.

If you have any questions regarding labor and employment law issues, please contact any member of Greenebaum’s Labor and Employment Team.

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