Supreme Court Rules that Witness who Replies to Employer’s
Questions in Internal Investigation is Protected from Retaliation

By Ted Olsen

Section 704(a) of Title VII of the 1964 Civil Rights Act prohibits retaliation against employees who "oppose" unlawful discrimination.  Courts have ruled that an employee who files an internal complaint with an employer, an agency charge or Title VII lawsuit is engaged in protected "opposition."  Section 704(a) also prohibits retaliation against an individual who "participates" in proceedings under Title VII.  Such "participation" may involve agency investigations of charges and court lawsuits.

In Crawford v. Metro. Gov't of Nashville & Davidson County, Tenn., Case No. 06-1595, 555 U.S. --- (January 26, 2009), the U.S. Supreme Court was presented with the issue of whether an employee who answers an employer's questions in an investigation of another employee's internal complaint has engaged in protected "opposition" under Section 704(a).  The Supreme Court ruled that an employee/witness who responds to questions in an internal investigation is engaged in protected "opposition," and therefore protected from retaliation under Title VII.

Crawford was a witness interviewed in her employer's investigation of an internal sexual harassment complaint made by another employee against the Human Resources Director.  (The other employee did not file an agency charge of discrimination.)  In the interview, Crawford reported to the investigator (also a subordinate of the accused) her own experiences of sexual advances and other harassing behavior by the HR Director.  Two other employees who were interviewed also reported that the accused had engaged in sexually inappropriate conduct.  The accused was not disciplined.  All three employees who reported sexually inappropriate behavior, including Crawford, were fired.  Crawford then filed a retaliation charge, and later pursued a retaliation lawsuit.

Both the district court and the Sixth Circuit Court of Appeals ruled that Crawford was not protected by Title VII.  According to them, Crawford's interview with the investigator was not protected "opposition" under Title VII, as she had not filed an agency charge, nor registered an internal complaint.  Moreover, her interview was not "participation" "in an investigation, proceeding, or hearing under" Title VII, as no agency charge had been filed by the complaining employee.

The Supreme Court reversed the decision, concluding that Crawford "opposed" the HR Director's sexually harassing behavior when responding to the employer's questions, just as much as she would have if she had filed an internal complaint against him.  The absence of an internal complaint or agency charge filed by Crawford did not render her answers anything other than "opposition" to the HR Director's sexual harassment.  The Supreme Court explained:

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. 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.

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© 2009 Sherman & Howard L.L.C.                                                February 6, 2009