When Is An Employee’s Participation In An Internal Investigation “Protected Activity” Under Title VII (Part 3)

Today, we have been discussing in our posts whether or not participation in an internal investigation is covered by Title VII’s “participation” clause. Whether or not is covered by the “participation” clause, it may still be covered by Title VII’s oppositional clause.

In Crawford v. Metro. Gov’t of Nashville and Davidson Cnty., 555 U.S. 271, 129 S. Ct. 846 (2009), the Supreme Court addressed the opposition clause’s application to witnesses in an employer’s internal investigation. The case arose following an investigation by Metro into rumors of sexual harassment. During the investigation, long-time Metro employee Vicky Crawford was asked by a human-resources officer whether she had witnessed inappropriate behavior by another Metro employee, Gene Hughes. In response, Crawford described several incidents of sexually harassing behavior by Hughes. Crawford was subsequently fired, as were the two other employees who also had reported sexual harassment by Hughes.

Crawford filed suit, claiming that her dismissal violated Title VII because it was allegedly in retaliation for her report of Hughes’s behavior. The district court granted summary judgment for Metro, concluding that Title VII’s anti-retaliation provision did not cover the conduct at issue because Crawford had not “instigated or initiated any complaint” against Hughes, but had “merely answered questions by investigators.” The Sixth Circuit agreed, concluding that “opposition” under Title VII “demands active, consistent ‘opposing’ activities to warrant . . . protection against retaliation.”

To resolve a conflict among the federal courts of appeals, the Supreme Court granted certiorari. In a decision authored by Justice Souter, the Supreme Court reversed and remanded for further proceedings, concluding that Crawford’s conduct was covered by the “opposition clause” of Title VII’s anti-retaliation provision, which (as set out earlier in this paper) makes it unlawful for an employer to discriminate against an employee “because he has opposed any practice made . . . unlawful . . . by this subchapter.” 42 U.S.C. § 2000e-3(a). At the crux of the Court’s opinion was the meaning of the term “oppose,” which is not defined in the statute itself. The Court held that the word “oppose” “carries its ordinary meaning,” citing definitions such as “to resist or antagonize,” “to confront,” and “to be hostile or adverse to, as in opinion.” The Court concluded that providing a disapproving account of an employee’s sexually obnoxious behavior may qualify as resistant or antagonistic, citing an EEOC guideline, and observed that communicating a belief that an employer has engaged in employment discrimination virtually always constitutes opposition to that activity. In support of the Court’s decision, Justice Souter announced,

“Oppose” goes beyond “active, consistent” behavior in ordinary discourse, where we would naturally use the word to speak of someone who has taken no action at all to advance a position beyond disclosing it . . . . And we would call it “opposition” if an employee took a stand against an employer’s discriminatory practices not by “instigating” action, but by standing pat, say, by refusing to follow a supervisor’s order to fire a junior worker for discriminatory reasons . . . . There is, then, no reason to doubt that a person can “oppose” by responding to someone else’s question just as surely as by provoking the discussion, and nothing in the statute 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.

Crawford, 129 S. Ct. at 851.

The Supreme Court thus rejected the Sixth Circuit’s interpretation of the “opposition clause” as requiring active, consistent, opposing activities, including the initiation or instigation of a complaint. Under the rule announced in Crawford, opposition includes not only those who report discrimination on their own initiative, but also those who report discrimination in response to an investigator’s question. The Court expressly did not address the scope and reach of the “participation clause” under Title VII’s anti-retaliation provision, which many observers had expected the Court to do under the facts of the case.

In Collazo v. Bristol–Myers Squibb Mfg., Inc., 617 F.3d 39 (1st Cir. 2010), the First Circuit U.S. Court of Appeals relied on Crawford to conclude that merely repeatedly accompanying a coworker to the human resources department to file complaints about sexual harassment, followed by employer action that would be perceived as materially adverse by a reasonable worker, can state a retaliation claim under the opposition clause. Id. at 46-48.

In Hilton v. Yoon S. Shin, Civil Action No. 11–cv–02241–AW, 2012 WL 1552797, at *4-5 (D. Md. Apr. 30, 2012), the district court relied on Crawford to conclude that a sexual harassment victim who rejected the company’s president’s sexual advances “opposed” discrimination for purposes of the opposition clause, even though she never complained about the harassment to anyone. The court stated, “[i]f refusing a supervisor’s order to fire someone for discriminatory reasons constitutes opposition [which is something the Crawford court had said in its opinion], it would seem to follow that refusing to submit to the sexual pressures of the company president constitutes opposition, especially for the purpose of a motion to dismiss.” Id. at *4.

More information can be found in our paper.

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