Supreme Court Holds Employee Interviewed in Harassment Investigation Can Claim Retaliation
On January 26, 2009 the U.S. Supreme Court ruled that an employee who provided information regarding a supervisor’s alleged sexual harassment, when interviewed by her employer during the investigation of other employees’ harassment allegations, can pursue a claim for retaliation under Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq. Crawford v. Metropolitan Gov’t of Nashville and Davidson County, Tennessee, No. 06-15952009 WL 160424 ( S. Ct. Jan. 26. 2009). The employee was protected from retaliation, a unanimous Court ruled, even though she had not herself filed a discrimination charge or made a complaint.
Title VII includes an anti-retaliation provision, 42 U.S.C. § 2000e-3(a), which makes it unlawful “for an employer to discriminate against . . . any employee” who (1) “has opposed any practice made an unlawful employment practice by this subchapter” (commonly referred to as the “opposition clause”) or (2) “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter” (commonly referred to as the “participation” clause). In this case, Vicky Crawford was interviewed during the course of her employer’s investigation into rumors that the employee relations director had engaged in sexual harassment. When Crawford was asked if she had ever witnessed any “inappropriate behavior,” she described several instances of sexual harassment by the director. No action was taken against the director. Some time after the investigation, however, Crawford’s employment was terminated because, the employer claimed, she had engaged in embezzlement. Two other employees who also reported sexual harassment by the director were terminated as well.
The U.S. Court of Appeals for the Sixth Circuit affirmed a lower court decision granting summary judgment for the employer. The lower court ruled that Crawford could not state a claim for retaliation under the “opposition clause” because she had not “instigated or initiated any complaint.” She also could not state a claim under the “participation clause” because the employer’s investigation was not conducted pursuant to a charge pending before the Equal Employment Opportunity Commission (EEOC).
In an opinion by Justice Souter, the Supreme Court reversed the Sixth Circuit, relying upon the Webster’s dictionary definition of “oppose,” and finding that Crawford was protected by the “opposition clause”:
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 a 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 her a question.
The Court discounted the employer’s concern that a “lower bar” for retaliation claims would discourage employers from conducting harassment investigations. Employers would still have a strong incentive to investigate harassment, the Court observed, in order to avail themselves of the affirmative defense established in the landmark decisions in Burlington Industries, Inc. v. Ellerth and Farragher v. Boca Raton (see Supreme Court Clarifies Standards for Employer Liability for Sexual Harassment by Supervisors (reported on this website on July 1, 1998). Those decisions require an employer to show that it has “exercised reasonable care to prevent and correct promptly” any discriminatory conduct in order to avoid vicarious liability for a supervisor’s behavior that creates a hostile work environment. The Court noted that “the possibility that an employer might someday want to fire someone who might charge discrimination traceable to an internal investigation does not strike us as likely to diminish the attraction of an Ellerth-Farragher affirmative defense.”
The Court did not address the parties’ arguments regarding the “participation clause” of Title VII’s retaliation section. In addition, because the District Court never reached the employer’s other defenses to the retaliation claim, the Supreme Court remanded the matter for further proceedings.
While employers should certainly continue to conduct prompt investigations of claims of harassment, by interviewing co-workers and potential witnesses, employers must exercise great care and seek legal advice when contemplating the termination of an employee who has been interviewed in such an investigation. As Justice Alito pointed out in his concurring opinion in the Crawford case, “some courts hold that an employee asserting a retaliation claim can prove causation simply by showing that the adverse employment action occurred within a short time after the protected conduct.” Consequently, while participation in an investigation should never shield an employee who has engaged in misconduct from termination, caution is particularly important in the period immediately following the investigation. Termination decisions involving such employees must be carefully considered and, depending on the circumstances, may even need to be delayed.