Employment Law Update - Retaliation Under Title VII

United States Supreme Court Clarifies When
Retaliation Occurs under Title VII

On January 26, 2009 the Supreme Court of the United States announced its decision in Crawford v. Metropolitan Gov’t of Nashville and significantly widened the circumstances in which an employee can claim retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq.

Crawford was a government employee who was questioned as part of an investigation of sexual harassment by another employee. Crawford did not instigate the investigation or volunteered to give evidence, but she described conduct that was undoubtedly sexually harassing and offensive. Two other employees gave similar statements. The City of Nashville took no action against the suspected harasser but fired the three woman who gave statements to the investigators. In Crawford’s case the claimed reason for termination was embezzlement, a claim that she hotly disputed. She filed a retaliation claim with the EEOC and then filed suit in the federal district court which dismissed her case. Her appeal to the Fourth Circuit Court of Appeals was denied.

The retaliation section of Title VII of the Civil Rights Act of 1964 has two parts. The first, known as the “opposition clause” makes it an unlawful employment practice to discriminate [retaliate] against an employee who “opposed” any unlawful employment [discriminatory] practice under the Act. The second, more vigorous, part, known as the “participation clause”, protects employees who “made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing under this subchapter”.

Both the trial and circuit courts agreed that Ms. Crawford did not have a valid retaliation claim under the “opposition clause” because merely providing a statement to investigators was not “opposition”. Rather, the lower courts said that “opposition” meant active, consistent “opposing” activities that go far beyond merely giving evidence to investigators. The lower courts also agreed that she did not have a claim under the “participation” clause because her testimony and assistance were part of an internal investigation and not in an EEOC investigation. Because other circuit courts of appeal had reached different conclusions on these issues the Supreme Court accepted e case to resolve the split among the circuit courts. However, the Court only ruled on the “opposition” issue.

Justice Souter’s opinion first reached for the ordinary dictionary meaning for “opposed” and found it to mean “to resist or antagonize” and “to contend against”; “to confront”; “resist”; or to “withstand”. He pointed to many historical examples of “silent opposition” and concluded that “Crawford’s description of louche goings-on would certainly qualify in the minds of reasonable jurors as ‘resistant’ or ‘antagonistic’” to the harassing employee. He also made this very practical point:

If it were clear that an employee who reported
discrimination in answering an employee’s
questions could be penalized with no remedy,
prudent employees would have a good reason
to keep quiet about Title VII offenses.

In fact, most sexual harassment policies make it clear that employees who cooperate in sexual harassment investigations will not face retaliation so that the employees are encouraged to report discriminatory conduct and participate in investigations. In essence, the position of the lower courts effectively undermined the advice of a generation of management lawyers that employers need to adopt formal policies that protected witnesses as part of the effective anti-discrimination policies needed to protect an employer from discrimination claims.

As an aside, while a cramped meaning of the participation clause limiting it only to EEOC investigations may be found in the literal text of Title VII, a conclusion that participation in an employer’s investigation or in a lawsuit not initiated by the EEOC is not protected activity would have the similar effect of negating the almost doctrinal position espoused in most employer handbooks that there will be no retaliation against employees who cooperate or participate in internal investigations. A ruling that Title VII’s retaliation protections are only triggered when the EEOC conducts an investigation or pursues a matter will undue sound employment practices that have been in place for years.

We are not sure if Crawford will have a noticeable effect on the filing of retaliation claims, which are steadily increasing. The prevailing view of most employment lawyers is that retaliation claims are often far easier to prove than the discrimination claims that precede them. What is certain is that employers who seek to discipline testifying employees will not be able to raise the syntactical argument that cooperating with an investigation is not “opposition”.

If you have questions about sexual harassment or discrimination in the workplace or how to conduct an internal investigation, please call Tom Barron or Angela Kosar at (856) 642 6445 or send an email to lsacalis@barpostlaw.com.

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