Supreme Court Holds Title VII Protects Employees Against Retaliation for Responding to Inquiries in Internal Investigations

Continuing its recent trend of pro-employee decisions, the Supreme Court has unanimously held that statements made in the course of internal employer investigations can constitute protected opposition under Title VII. In Crawford v. Metropolitan Government of Nashville and Davidson County, No. 06-1595 (Jan. 26, 2009), the Court established that employers taking adverse action against an employee following such an investigation may lay the groundwork for a Title VII retaliation claim.

Facts of the Case

In response to rumors of sexual harassment by the school district's employee relations director, the Metropolitan Government of Nashville and Davidson County ("Metro") began an internal investigation. In the course of that investigation, Vicky Crawford, a payroll administrator who had worked for Metro for 30 years, described, upon questioning, several instances of what the Supreme Court referred to as "louche goings-on" by Gene Hughes, the employee relations director. Ms. Crawford's employment was terminated approximately six months later, allegedly for embezzlement. Ms. Crawford sued Metro in the U.S. District Court for the Middle District of Tennessee, claiming that, in fact, the termination of her employment was in retaliation for the statements she made during the Hughes investigation.

Title VII's Anti-Retaliation Provision

Title VII of the Civil Rights Act of 1964 prohibits discrimination by employers on the basis of race, color, religion, sex or national origin. It includes an anti-retaliation provision which prohibits discriminating against an employee because that employee has "opposed any practice made an unlawful employment practice by [Title VII]" (the "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]" (the "participation" clause). Ms. Crawford claimed that her statements about Mr. Hughes' alleged harassment constituted both opposition against a practice made unlawful by Title VII and participation in a Title VII investigation.

The Sixth Circuit Dismisses Ms. Crawford's Retaliation Claims

The U.S. Court of Appeals for the Sixth Circuit affirmed the district court's grant of summary judgment for Metro, finding that Ms. Crawford's statements qualified neither as opposition nor as participation as defined by Title VII. The Sixth Circuit explained that "opposition" for purposes of Title VII protection must be overt, active and consistent; simply answering questions in the course of an internal investigation is not enough. It further held that "participation" under Title VII means participation in an investigation pursuant to a pending EEOC charge—not a purely internal investigation.

The Supreme Court Reverses, Emphasizing Common Understanding of "Oppose"

The Supreme Court, in a majority opinion written by Justice Souter and joined by Justices Roberts, Stevens, Scalia, Kennedy, Ginsburg and Breyer, reversed the Sixth Circuit's holding with respect to the opposition clause. (The Court declined to rule on the meaning of the participation clause because Ms. Crawford's conduct was covered by the opposition clause.) Justice Alito, joined by Justice Thomas, concurred in the judgment but wrote separately to explicitly exclude "silent opposition" from protection.

The Court noted that the common understanding of "oppose" does not require active, consistent behavior. Rather, there is "no reason to doubt that a person can 'oppose' by responding to someone else's question just as surely as by provoking the discussion." In particular, a response describing inappropriate behavior can qualify as resistant or antagonistic, and therefore as opposition.

The Court next rejected the argument that its expansion of the opposition clause would discourage employers from investigating complaints of harassment or discrimination, for fear of resulting retaliation lawsuits. The Court opined 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 employee unreasonably failed to report the conduct, provides a strong enough inducement that employers will still be motivated to investigate and prevent discriminatory activity in their workplaces.

Finally, the Court noted that the Sixth Circuit's approach might discourage employees, fearful of retaliatory discharge, from reporting Title VII offenses.

Practical Considerations for Employers

Employers should not be afraid to conduct internal investigations following complaints of harassment or discrimination in the workplace; prompt investigation of and response to complaints can constitute a valuable affirmative defense against these charges. However, employers should be aware of the protection that may be afforded to employees who participate in such investigations. Careful documentation of the reasons for any adverse employment action becomes all the more important given the range of employees protected by Title VII's anti-retaliation provision.