Supreme Court Clarifies Retaliation Law

February 2, 2009

Most employers know not to fire an employee who complains about discrimination. What about the employees interviewed in an investigation of a claim of discrimination?  What about an employee who offers her opinion about improving the workplace?  A recent Supreme Court decision has clarified the types of conduct that might trigger protection under federal retaliation law. Title VII of the Civil Rights Act prohibits employer discrimination.  The Act also prohibits an employer from retaliating against an employee who “opposes” what he or she reasonably believes to be employer discrimination.  Federal courts have applied different definitions of what constitutes employee “opposition” to perceived discrimination.  The Sixth Circuit Court of Appeals applied a rigorous standard: opposition to an employer’s conduct had to be “active, consistent, opposing action” to merit protection under the non-retaliation provision in Title VII. Recently, the United States Supreme Court reviewed this definition of opposition and rejected it as too narrow.  In Crawford v. Metropolitan Government of Nashville and Davidson County, TN, the employer was investigating rumors that an employee relations director had been sexually harassing female employees.  As part of the investigation, Vicky Crawford, a thirty year employee, was interviewed.  Crawford had not made any accusations against the director.  In the interview, Crawford was asked if she had observed any inappropriate behavior by the director.  She responded that she had and cited several graphic examples of actions the director had taken toward her. Soon after the investigation, Crawford and two others who had accused the director of harassment were fired.  No action was taken against the director.  The reason the employer gave for Crawford’s termination was embezzlement.  Crawford sued claiming that her answers to questions during the investigation were protected opposition under Title VII.  Both the trial judge and the Court of Appeals for the Sixth Circuit rejected her case holding that Crawford’s merely answering questions during a harassment investigation was not sufficiently “active, consistent, opposing action’ to merit her protection against retaliation. The Supreme Court held that Crawford’s “disapproving account of sexually obnoxious behavior toward her by a fellow employee” was sufficient to satisfy the opposition clause of Title VII.  The Court reasoned that “a person can ‘oppose’ by responding to someone else’s questions just as surely as by provoking the discussion and nothing in [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 her boss asks a question.” All employers covered by Title VII should take note of this broader reach of the opposition clause.  It is no longer necessary for the employee to initiate the complaint of discrimination in order to oppose it and earn protection from retaliation.  Going forward, employers need to be attentive listeners to their employees’ comments or answers to questions about perceived discrimination or harassment.

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