By far the best line from the recent Supreme Court decision on retaliation in the workplace is “[n]othing in the statute [Title VII] requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when asked a question.” The decision is Crawford v. Metropolitan Government of Nashville and Davidson County.

The facts in Crawford are fairly simple: Human Resources asked Ms. Crawford whether she had witnessed inappropriate conduct by her supervisor. Ms. Crawford responded that several times her supervisor had grabbed his crotch at her, pushed his crotch up to her window, asked to see her breasts, and in one instance grabbed her head and pulled it to his crotch. Ms. Crawford reported during this interview with Human Resources that she told her supervisor “bite me,” and flipped him the bird. Two other employees reported being harassed by the same supervisor. After the investigation, all three employees including Ms. Crawford were fired. Ms. Crawford was fired for embezzlement.

Ms. Crawford’s employer had a couple of defenses. First, the employer argued that Ms. Crawford did not oppose the harassment because doing things like saying “bite me” and flipping him the bird were not appropriate opposition and that reporting the events during the internal investigation did not amount to opposition. Second, the employer argued that the anti-retaliation provision in Title VII did not apply to an internal investigation. While the trial court and the appeals court bought these arguments, the Supreme Court of the United States rejected them – – as freakish.

Title VII’s anti-retaliation provision makes it “an unlawful employment practice for an employer to discriminate against any of his employees . . . [1] because he has opposed any practice made an unlawful employment practice by this subchapter, or [2] because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” Specifically, the Supreme Court disagreed. First, it stated that opposition to unwanted behavior derives its meaning from the most basic definition of the term opposition. For example, they noted, people can “oppose” the death penalty without writing letters and “taking it to the streets,” so to speak. Second, the Supreme Court stated, when an employee describes employment practices prohibited by Title VII in response to a company investigation or inquiry, that employee has engaged in conduct protected by the opposition clause of Title VII’s anti-retaliation provision.

Let’s Break It Down

There are two types of retaliation prohibited by Title VII (and many other anti-discrimination laws): that prohibited by the Opposition Clause and that prohibited by the Participation Clause.

Opposition:

The opposition clause of Title VII makes it “an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by” Title VII. You may recall from past articles (hopefully not from past lawsuits) that it is important for employers to have established proper workplace policies including a prohibition on retaliation.

In the Crawford case, the employer alleged that Ms. Crawford’s claims of harassment were only discovered during the company’s internal investigation of the supervisor and hence did not trigger the “opposition clause” of Title VII. The Supreme Court disagreed, stating: “[n]othing in the statute [Title VII] requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when asked a question.” In other words, the opposition clause goes into effect regardless of when, how, or in what context the employee opposes the violation. Bottom line – if an employee has told you about Title VII violations, she has opposed the violations…meaning you may not retaliate against her for telling you.

As a side note, while the best way for your employee to let you know someone is engaging in practices that violate Title VII is for them to report the offender, chances are you have a few employees who like Ms. Crawford may be more likely to merely say, “bite me.” The Supreme Court’s interpretation of an employee’s opposition to unwanted harassment tells us that opposition can come in many forms, and under many circumstances. Bottom line – – an employee does not have to formally say, “I oppose this behavior,” and does not have to file an EEOC complaint before her actions amount to opposition to violations.

Participation:

Although the decision did not directly discuss this clause, the decision may influence the interpretation of an employee’s reporting of harassment via participation in an investigation.

Remember, Title VII’s language is broad and provides protection to anyone who has “participated in any manner in an investigation, proceeding, or hearing under” Title VII. The Crawford decision should make it clear that the Supreme Court is construing an employee’s actions concerning Title VII investigations as liberal triggers for the anti-retaliation provisions of Title VII.

Practical Lessons:

• When the Supreme Court calls your interpretation of events or your defense “freakish,” you are going to lose. But seriously…
• Understand the basic rule of Crawford – – when in an internal investigation or inquiry an employee describes actions which violate Title VII, that employee has engaged in conduct protected by the opposition clause of Title VII’s anti-retaliation provision.
• As always, have proper policies and procedures in place that prohibit violations of Title VII, but also allow employees to report those violations without fear of retaliation.
• Have a neutral person (HR, perhaps) oversee personnel decisions to make sure something fishy is not happening, i.e. someone is being demoted because they reported a violation of Title VII. Remember that retaliation can be found in many types of adverse actions, including but not limited to reductions in pay, diminution in responsibility, change in job title or duties, and discharge.
• Ms. Crawford was fired very shortly after she reported her supervisor’s violations. Take note, in many retaliation cases, the closer in time to an employee’s reporting, the more likely the action will be seen as in retaliation against the employee for reporting.
• Again as always, document the circumstances surrounding any reports of violations, as well as personnel actions. Lawsuits can stretch out for years and years, and it is often difficult to go back and reconstruct the reasons why you took the actions you did, meaning it will be more difficult to prove your actions were legitimate.

By McLaine DeWitt Herndon, mherndon@dsda.com.