The Supreme Court Agrees to Review a Sixth Circuit Ruling that Narrowly Construes Title VII's Protection Against Retaliation

The Supreme Court recently granted certiorari in Crawford v. Metropolitan Government of Nashville and Davidson County. In that case, the U.S. Court of Appeals for the Sixth Circuit severely undercut protection against retaliation for employees who cooperate in an employer's internal investigation of discrimination by providing information that supports the discrimination complaints of other employees.

Though making predictions about the Supreme Court's intentions is always risky, one can only hope the Court has taken this case in order to reverse the Sixth Circuit. It should do so in order to ensure that employees cooperating with internal investigations receive the protection they need in order to be able to tell the truth without fear of the consequences.

Title VII's Protection Against Retaliation

Title VII, a broad-ranging federal anti-discrimination law, expressly protects employees from retaliation by employers for claiming their statutory rights. The specific protection against retaliation comes in two separate clauses:

The "participation" clause makes it unlawful to discriminate against an employee "because ... he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." As interpreted by the courts, this clause covers employee participation in Title VII's statutorily authorized enforcement mechanisms, such as filing a charge with the Equal Employment Opportunity Commission (EEOC) or a lawsuit in court. Employee actions that are covered by this clause receive the broadest protection from retaliation, protecting employees from adverse consequences even if their beliefs about discrimination turn out to be factually or legally incorrect, as long as the employees acted in good faith.

An alternative source of protection from retaliation, the "opposition" clause, makes it unlawful for an employer to discriminate against an employee "because he has opposed any practice made an unlawful employment practice by this subchapter." This clause applies to protect from retaliation those employees who oppose discrimination outside formal processes, for example, by bringing concerns to the attention of the employer informally, rather than (or prior to) filing an EEOC charge.

The opposition clause is a necessary supplement to the participation clause, since employees generally do seek to work out their concerns and complaints with employers informally before invoking the formal EEOC process, and indeed, are usually encouraged to do so by employers' antidiscrimination policies. However, Title VII law provides narrower substantive protection for employees under the opposition clause, limiting the protection from retaliation to only those acts of "opposition" that rest on an objectively "reasonable" belief, both factually and legally, that the employer has actually violated Title VII's ban on discrimination. As we have discussed previously, this limitation leaves much employee opposition to discrimination unprotected, since most employees lack a clear understanding of the law and facts necessary to establish a Title VII violation.

The Need to Protect Employees who Participate in Employer Investigations and the Disturbing Ruling by the Sixth Circuit in Crawford

Employer investigations into allegations of discrimination have become commonplace, functioning as an integral part of the statutory scheme for avoiding Title VII liability and minimizing damages. For example, in order to avail itself of the affirmative defense to liability for sexual harassment, an employer must follow reasonable policies and procedures for investigating and responding to allegations of harassment. In addition, in order to avoid punitive damages for intentional discrimination, employers must prove good faith efforts to comply with Title VII, for example, by developing and following procedures for investigation and addressing discrimination complaints.

Over the past decade, these legal incentives have led to a proliferation of employer antidiscrimination policies that require employers to thoroughly investigate all reports and allegations of workplace discrimination. For these procedures to be anything other than a sham - and, even worse, a sham that employers may nevertheless use to minimize their liability -- employees who are called upon to provide relevant information in such an investigation must be assured that the law will protect them from any retaliation by their employers for offering truthful information. Otherwise, employees will be chilled from saying what they know, and employer investigations will be impaired when evidence is withheld.

For these reasons, the ruling that the Supreme Court has just agreed to review, Crawford v. Metropolitan Government of Nashville and Davidson County, is a crucial test of Title VII's legitimacy. In this case, the plaintiff is a woman who had worked for city government for thirty years. She alleges that she then was fired for cooperatively and truthfully participating in a city investigation of sexual harassment allegations against the city school district's director of employee relations. (Ironically, the alleged harasser was the very person responsible for investigating harassment complaints in the office.)

The investigation began when employees other than the plaintiff complained of specific incidents of sexual harassment by the director. Importantly, for purposes of the Sixth Circuit's ruling, the employees made their complaints internally to the employer without filing a charge with the EEOC. The employer then responded by investigating the complaints and interviewing persons who might provide information relevant to the allegations. The investigator accordingly called the plaintiff in, to ask her about her experiences with the director accused of harassment.

The plaintiff cooperated in the investigation and told investigators that the director had in fact sexually harassed her and other employees. She told the investigator, among other things, that the director had "asked to see her titties on numerous occasions," and that she would say "'Hey Dr. Hughes, What's Up?" and he would "grab his crotch" in response and state, "You know what's up." She also told the investigator that on one occasion the director had come into her office, and, when she asked what she could do for him, "he grabbed her head and pulled it to his crotch." The investigator ultimately concluded that the director had engaged in "inappropriate and unprofessional behavior," although not to the extent that the employees had claimed.

After the conclusion of the investigation, the plaintiff, along with three other employees who made statements supporting the sexual harassment allegations against the director, was investigated for alleged unrelated infractions and fired. (As with many retaliation cases, the actual cause of the plaintiff's termination was in dispute; the employer claimed to have investigated her for embezzlement and drug use, charges which the plaintiff claimed were "ultimately found to be unfounded.")

Somewhat remarkably, the Sixth Circuit ruled that the plaintiff's participation in the investigation was completely legally unprotected - as it was outside the reach of either the participation clause or the opposition clause of Title VII. Hence, the Sixth Circuit concluded that the firing was not actionable as a matter of law, even if it was caused by the plaintiff's participation in the investigation, rather than, as the employer claimed, problems with her job performance. In other words, the Sixth Circuit claimed that the plaintiff could legally have been fired for her role in the investigation alone.

Both of these rulings rest on serious misreadings of the purposes of Title VII and should be reversed by the Supreme Court.

The Participation Clause: Why Employer Investigations into Discrimination Should Count as Statutorily-Authorized Enforcement Mechanisms

The Crawford case provides an important opportunity for the Court to examine the scope of coverage under the participation cause, and its interaction with employer investigations into discrimination complaints. Unfortunately, the Sixth Circuit is not alone in treating employee participation in employer internal investigations as outside the scope of the participation clause, at least where a formal EEOC charge has not yet been filed. By relegating such claims to the opposition clause, these lower court rulings deny employees the broad protection of the participation clause (which, as noted above, applies even if employees misunderstand the law or facts), even if employees have no choice but to provide information at the behest of their employers. As long as employees provide truthful information in such investigations, they should be fully protected from retaliation, plain and simple.

The Sixth Circuit, employing reasoning similar to that employed by other lower courts, reached a contrary result by mistakenly viewing such employer investigations as entirely voluntary and outside the statutory liability scheme set up by Title VII. According to the appellate court, providing full protection from retaliation to employees who participate in such processes would discourage employers from acting voluntarily to investigate and respond to discrimination complaints when not compelled to do by formal EEOC processes.

However, the Sixth Circuit's reasoning wholly ignores the past decade's legal developments that have made employer investigations part and parcel of Title VII's overall liability scheme. A prior column by a co-author of this column, Joanna Grossman, details that scheme, the Supreme Court cases that created it, and the role that internal procedures play within it, creating crucial legal advantages for those employers that create such procedures and avail themselves of them.

In light of the significant advantages internal investigative procedures confer, no rational employer would forego such investigations, once notified of discrimination, out of the fear that Title VII's participation clause would protect participating employees from retaliation. Doing so would mean the employer risked liability and even punitive damages in a potential discrimination lawsuit that might later occur. Thus, far from discouraging internal investigations of discrimination complaints, providing full protection from retaliation for participating employees simply ensures that such investigations fulfill their intended purposes under Title VII's enforcement scheme,

For these reasons, both the EEOC and the United States Solicitor General, in a brief urging the Court to grant review in the Crawford case, have recognized the policy imperatives for extending Title VII's fullest protection from retaliation to employees who provide truthful information in an employer investigation into discrimination. Such protection should not depend, as the Sixth Circuit erroneously found that it did, on whether a formal charge has been filed with the EEOC. Indeed, as the government recognizes, employees should be encouraged to informally resolve their concerns through the employer's internal channels prior to going to the EEOC. And for some claims, such as claims of sexual harassment, employees have an obligation to first report harassment internally; otherwise, the employer is likely to have an affirmative defense to a harassment suit. Consequently, withholding full protection from retaliation until an EEOC charge has been filed is directly at odds with the very purposes of Title VII.

In sum, the Crawford case provides the Court with a much-needed opportunity to put to rest the distinction between statutory enforcement mechanisms, which have received full protection from retaliation under the participation clause, and "voluntary" employer enforcement processes, which have not. Lower courts have improperly used such a distinction to exempt participation in employer investigations from the law's fullest protection from retaliation. We hope the Supreme Court will correct this unfortunate loophole in Title VII's retaliation coverage.

The Opposition Clause: The Sixth Circuit's Problematic "Active"/"Passive" Distinction

As we noted above, not only did the Sixth Circuit withhold protection under the participation clause, but the court also denied the plaintiff protection from retaliation under the opposition clause, which generally covers employee "opposition" to discrimination outside of statutory enforcement mechanisms--that is, even without filing an EEOC charge.

In a remarkably cramped interpretation of the opposition clause, the court ruled that the plaintiff's participation in the investigation did "not constitute opposition under the meaning of the opposition clause" because the plaintiff was only a witness in the investigation, and not a complainant. The court reached this conclusion by distinguishing the "active, consistent 'opposing' activities" required to invoke the opposition clause from the plaintiff's mere cooperation in the investigation. In other words, even the plaintiff's statements -which, as discussed above, accused the director of specific incidents of harassment -- amounted in the eyes of the Sixth Circuit to mere passive cooperation, and not active opposition to discrimination.

Downplaying the forcefulness of the plaintiff's actions in speaking out about what had occurred, the court stated that she "does not claim to have instigated or initiated any complaint prior to her participation in the investigation, nor did she take any further action following the investigation and prior to her firing. This is not the kind of overt opposition that we have held is required for protection under Title VII." This aspect of the court's ruling is remarkably misguided, for a number of reasons.

First, the court took an unjustifiably narrow--and arguably stereotypically "male"--view of "opposition" as conduct that is distinctly combative, adversarial, and forcefully direct in demanding change. The fact that the plaintiff responded to, rather than initiating, the sexual harassment investigation should not minimize her involvement or deny her protection from the resulting retaliation for her reports of past harassment. The court's narrow approach to the opposition clause ignores the plaintiff's courage in telling her story to investigators and in objecting to the director's offensive behavior.

The plaintiff's statements identifying and labeling the director's offensive conduct as sexual harassment clearly took a stand against discrimination, especially when judged against more common responses to harassment, which include denying, minimizing and trivializing it. Surveys and studies establish beyond dispute that most women who experience sexual harassment do nothing to directly challenge the behavior or confront the harasser. The clear tendency, instead, is to minimize, excuse, or trivialize it - a rational response to the powerful social and institutional pressures on lower-level employees generally, and women especially, not to complain.

Second, the court's decision as a whole is staggering in its implications for the effectiveness of Title VII as a tool to combat workplace discrimination. If cooperating employees are not protected from retaliation, then they will naturally be reluctant to provide supportive or corroborating evidence in an employer's internal investigation out of a reasonable fear of retaliation, which will, in turn, reduce the likelihood that the investigation will result in a finding of harassment or any action to remedy the problem. At the same time, however, the employer will likely be deemed by courts to satisfy its obligation of "reasonable care" for purposes of invoking its affirmative defense to harassment claims, and its defense to punitive damages on Title VII claims more generally. In this way, kangaroo investigations will predictably lead to genuine and unmerited protection for employers facing credible harassment claims.

The unfortunate result of the Crawford decision is to leave the coworkers of a complainant in a terrible predicament: They must choose between on one hand, providing truthful information that would support another employee's discrimination claim in an employer-authorized investigation and risking lawful retaliation, or, on the other hand, staying silent and withholding relevant information from an employer investigation, and thereby turning their backs on the complainant in order to protect themselves from retaliation.

For Title VII law to provide any meaningful protection from workplace discrimination, it must not place employees in such a double-bind, forcing them to choose between telling the truth and protecting their jobs.

The Right Outcome Here is for the Supreme Court to Ensure Its Own System Is Effective By Protecting Internal Investigations

More and more employers are implementing investigative processes for responding to employee allegations of discrimination, which seems to have been precisely what the Supreme Court intended when it crafted its Title VII liability scheme. However, as investigative processes become more frequent, so too will scenarios like the one in Crawford likely arise with increasing frequency.

Let's hope that the Supreme Court will recognize that the very legitimacy of the Title VII scheme it has crafted, in which liability and damages rules strongly incentivize the creation of such internal investigative processes, depends on eliminating Crawford's double-bind. Only if the law provides strong protection from retaliation to employees who participate in good faith in an employer investigation of a coworker's allegations of discrimination, can such investigations justifiably favor employers seeking to avoid Title VII liability.