The Supreme Court Restores Title VII's Protection Against Retaliation, but Employees Still Face Gaps in Retaliation Law
By JOANNA L. GROSSMAN & DEBORAH BRAKE
|Tuesday, February 3, 2009|
Recently, the Supreme Court voted unanimously in Crawford v. Metropolitan Government of Nashville and Davidson County to reverse a federal appellate ruling that had denied protection from retaliation to employees who participate as witnesses in an employer's internal investigation of sexual harassment charges brought by other employees. This was a clear win for victims of discrimination, but the ruling stops short of a slam-dunk for employees who risk retaliation for participating in an employer investigation into discrimination charges.
The Court's ruling in Crawford was essential to keeping the entire liability scheme under Title VII from becoming a charade -- one in which employers avoid liability by conducting internal investigations, but render such procedures useless by deterring employees from coming forward with information. The appellate decision in Crawford was an obvious obstacle to the integrity of Title VII's enforcement scheme and needed to be reversed.
Even so, however, further development of the law is needed to ensure the adequate protection of employees from retaliation, and to fully enforce Title VII's core promise of non-discrimination.
The Claim of Retaliation in Crawford
Here are the facts in Crawford itself: Vicky Crawford had worked for city government for thirty years when she was called in by a human resources officer to answer questions about allegations by other employees of "inappropriate behavior" by the city school district's director of employee relations, Gene Hughes. Although Crawford herself had been sexually harassed by Hughes, she never filed a complaint because, as she explained, Hughes was the very person responsible for receiving such complaints.
Other employees, however, did come forward with allegations of Hughes's sexually harassing behavior, prompting the employer to investigate. At the time the internal investigation took place, none of the complaining employees had yet filed a charge with the EEOC.
Crawford, along with two other women interviewed in the course of the investigation, expressed the fear that she would be fired if she told the truth about Hughes. As she saw it, Hughes was "very good friends" with the School District Director. Nevertheless, Crawford cooperated in the investigation and told investigators that Hughes had, in fact, sexually harassed her and other employees, describing his lewd behavior in detail. She told the investigator, among other things, that Hughes 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 mentioned that he "would approach her window and put his crotch up to the window." Finally, she told the investigator that, on one occasion, Hughes 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."
Although all three women who were interviewed described similar sexually- harassing behaviors by Hughes, the city's investigators were unwilling to conclude that Hughes had actually engaged in the behaviors described -- because each of the women was alone with Hughes at the time of the alleged harassment and because Hughes denied that the behaviors occurred. The investigation did conclude that Hughes had engaged in "inappropriate and unprofessional behavior" in some respects, but the company took no disciplinary action against him. And, just as they had feared, all three of the women who provided information were fired shortly thereafter.
If, as Crawford claims, the employer fired her because she corroborated the sexual harassment allegations about Hughes in an internal investigation, is that unlawful retaliation? That was the question for the Supreme Court in Crawford, and the Court answered it affirmatively – and, we will argue, rightly so.
Title VII's Protection Against Retaliation
The decision turned on the Court's construction of Title VII's anti-retaliation provisions. Title VII, a broad-ranging federal anti-discrimination law, expressly prohibits employers from retaliating against employees for enforcing their rights. The specific protection comes in two separate clauses:
First, 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." This clause is most often invoked to protect employees who participate in Title VII's formal enforcement mechanisms, such as filing a charge with the Equal Employment Opportunity Commission (EEOC) or a lawsuit. Employee actions that are covered by this clause receive the broadest protection from retaliation, for this clause protects employees from adverse consequences regardless of the merits of the underlying discrimination complaint, as long as the employee acted in good faith.
Second, an alternative source of protection from retaliation 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." The "opposition" clause has been applied 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. But the protection for employees under this clause is narrower. Specifically, it is limited to only those acts of "opposition" that rest on an objectively "reasonable" belief, both factually and legally, that the employer actually violated Title VII.
In this case, Crawford argued that both the participation clause and the opposition clause applied, and should have protected her from being fired for providing truthful, good faith information about Hughes's alleged harassment. Yet the U.S. Court of Appeals for the Sixth Circuit disagreed on both counts, leaving her unprotected under either clause.
The Issue in Crawford: What is "Opposition" to Discrimination?
In Crawford, the Sixth Circuit ruled first that the plaintiff's participation was outside the reach of the participation clause because no formal EEOC charge had yet been filed. It also ruled that she was not protected under the opposition clause because, by merely answering questions, and not bringing a complaint herself about Hughes, she did not "oppose" the discrimination.
In support of this conclusion, the appellate court distinguished "active, consistent 'opposing activities'" from mere cooperation in an employer investigation. This cramped interpretation of the opposition clause was at odds with rulings from other federal appellate courts, which had treated an employee who provides corroborating information to support another complaining employee's allegations as "opposing" the discrimination.
Thankfully, the Supreme Court took a more commonsense and reasonable view of "opposition," assigning the term its ordinary meaning: "to resist or antagonize . . .; to content against; to confront; resist; withstand." Though "opposition" certainly encompasses the kind of active resistance and instigation contemplated by the Sixth Circuit, the Court reasoned, it includes other forms of opposition as well. As the Court wrote, "Countless people were known to 'oppose' slavery before Emancipation, or are said to 'oppose' capital punishment today, without writing public letters, taking to the streets, or resisting the government. . . . 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. . . ."
For further support, the Court cited the EEOC Compliance Manual, which provides that an employee's description of discriminatory conduct in the workplace virtually always "constitutes the employee's opposition to the activity," unless she makes clear that she condones or supports the behavior. Accordingly, the Court concluded that Crawford's statement "is thus covered by the opposition clause, as an ostensibly disapproving account of sexually obnoxious behavior toward her by a fellow employee, an answer she says antagonized her employer to the point of sacking her on a false pretense."
Justice Alito and Thomas concurred in the judgment, but wrote separately to caution that protection under the opposition clause does not extend to "silent opposition" or opposition that is "not active and purposive." Their concern was that extending the protections of the opposition clause to reach, for example, informal chats with coworkers or private expressions of feeling outside the workplace would create practical proof problems and expand the retaliation claim too far. They wrote separately to emphasize that they would not extend the statute's protection to "employees who do not communicate their views to their employers through purposive conduct"—admittedly, not the scenario at issue in the Crawford case, in which Vicky Crawford purposefully accused her boss of sexual harassment in an investigation by her employer.
Why the Supreme Court Got it Right
The Court's definition of "opposition" is far superior to the Sixth Circuit's, for several reasons. It does not, for example, impose a stereotypically male view of opposition that is combative, adversarial, and overtly assertive. Surveys and studies show that most women who experience sexual harassment tend to avoid direct challenges to the behavior or confrontations with 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. And yet, women who are courageous enough to tell the truth about a sexual harasser in an employer investigation into harassment—as these three employees were, to their peril—surely "oppose" the discrimination even though they did not initiate the underlying complaint..
In a rebuke to the court below, Justice Souter did not mince words when he observed, "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." There are many ways of opposing discrimination in the workplace, and the Court appropriately rejected a view that would have protected only one form of opposition, acting as a complainant.
The Court's ruling also takes account of workplace realities, and the very real risk and fear of retaliation that employees face even with "mere cooperation," much less active instigation of a complaint – a risk that allegedly was realized in the Crawford case itself, with three firings. As the Court acknowledged, lesser protection for retaliation would mean that "prudent employees would have a good reason to keep quiet about Title VII offenses against themselves or against others." And yet, scared employees would find themselves in a real predicament if called to answer questions by their employer or else face punishment for insubordination and obstruction if they refused.
An employee fearing retaliation for telling the truth and punishment for staying silent or appearing uncooperative might be tempted to feign ignorance, memory lapse, or worse, lie to protect an accused harasser. Such responses would greatly undermine the statutory goal of voluntary compliance, and would leave the complainant out in the cold, with the discrimination unverified and unremedied. Nothing in Title VII requires employees to face such a predicament.
Finally, the Court clearly understood that the Sixth Circuit rule undermined a core piece of the statutory liability scheme: the inducement for employers to establish and follow policies and procedures to investigate, correct, and prevent discrimination. In order to avoid liability in sexual harassment cases, and to minimize the risk of punitive damages in any discrimination case, employers must establish procedures for investigating and responding to allegations of discrimination. The very legitimacy of Title VII would be called into question if the liability rules ensured that employers internally investigated discrimination complaints, but the statute offered no relief if every witness who gave information supporting the complainant in such an investigation was fired for having done so. As the Court forcefully concluded, "Nothing in the statute's text or our precedent supports this Catch-22."
Why More Protection Against Retaliation is Still Needed: Courts -- Ideally the Supreme Court -- Should Also Find that Protection Exists Under the Participation Clause
Under the Court's interpretation, Crawford's conduct was clearly protected under the opposition clause. As a result, the Court did not need to, and did not review the lower court's ruling denying Crawford protection under the participation clause. This is understandable in Crawford's case, but may prove unfortunate for other employees.
Protection from retaliation is substantially greater under the participation clause than it is under the opposition clause. This is because the courts apply an objective "reasonable belief" test to limit protected conduct under the opposition clause. An employee who opposes conduct she perceives as discriminatory is only protected under the opposition clause if the court agrees that her belief that discrimination occurred was objectively reasonable. In a trend that has become increasingly troubling in the lower courts, courts have denied employees protection under this doctrine in myriad cases, including those where the employee's belief was mistaken because it rested on an incorrect understanding of the law, or where it lacked sufficient factual support that discrimination occurred.
As we have discussed in a previous column, some lower courts have applied this doctrine very harshly, cutting far back on the protections employees need to enforce their rights under the law. For example, in one Fourth Circuit case, an employee was denied protection from retaliation under the opposition clause because he did not have a reasonable belief that a blatantly racist comment by a coworker rose to the level of creating an unlawful racially hostile environment. In that case, the court ruled that although a pattern of such comments would violate Title VII, that one incident standing alone was not severe enough to support a reasonable belief that unlawful harassment had occurred. As a result, any retaliation that the complainant faced for reporting the racially harassing remark through the employer's established procedures was not actionable under Title VII.
As harsh as this doctrine is when it is applied to deny protection from retaliation to employees who complain about perceived discrimination, it is that much worse when applied to employees who provide information in support of a colleague's complaint. An employee who provides information as a witness does not have control over whether someone else files a complaint or whether an employer initiates an investigation. That employee is just told to provide information and respond to questions. Is that employee to be denied protection from retaliation because the complaining party lacked a reasonable belief that the employer violated the law?
In the Fourth Circuit case discussed above, for example, if the employer had called in another employee who was present when the alleged offending remark was made, and that employee had verified the complainant's account, could the employer then retaliate against that employee because it turned out that, according to the Fourth Circuit, the belief that unlawful racial harassment occurred was not reasonable? Such a result would again make a mockery of internal procedures—the very mockery the Supreme Court was determined to avoid in Crawford.
Thankfully, the lower courts need not reach such a result. Although the Supreme Court did not reach the participation clause issue in Crawford, this clause can and should be read to cover employee participation in internal employer EEO processes, regardless of whether a formal EEOC charge has yet been filed. As we have argued in a prior column, Title VII's participation clause is broad enough to encompass participation in internal employer investigations of discrimination, as well as EEOC investigations and lawsuits. Internal employer proceedings have become increasingly commonplace and integral to the liability scheme created by the statute. Employees who cooperate with such investigations should have the same important protection against retaliation whether or not the investigation takes place before or after an EEOC charge has been filed. Participation "in an investigation, proceeding, or hearing under this subchapter" refers to Title VII as a whole, not more narrowly to the specific provision in Section 706(b) that establishes the EEOC enforcement process.
If the choice between the participation clause and opposition clause would make a difference in a future case, courts should pay close attention to the Supreme Court's reasoning in Crawford and find protection for those who participate in internal investigations under both the participation clause and the opposition clause.