Protection Against Retaliation

On January 26, 2009, a unanimous U.S. Supreme Court held that an employee may state a viable retaliation claim when she answers questions from her employer about harassment in the workplace. The claim may still be valid even if the employee did not ever file a harassment charge or initiate the internal investigation that led to questioning her. Crawford v. Metropolitan Gov’t of Nashville & Davidson County, Tenn., 129 S.Ct. 846 (2009).

An investigation of rumors of sexual harassment on the part of a male school official began in 2002. In response to the investigator’s inquiry as to whether she had ever witnessed any inappropriate behavior on his part, Crawford complained that she had seen him make a number of lewd gestures and heard him make indecent comments to her in the past, citing specific instances of such conduct.

Soon after the investigation of the alleged misconduct concluded, the official fired Crawford and two other accusers, citing, in Crawford’s case, embezzlement. Crawford filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging retaliation for reporting the Employee Relations Director’s behavior in violation of Title VII of the Civil Rights Act. Crawford argued that her response to the inquiry was a protected activity under the “opposition clause” of Title VII’s anti-retaliation provision. Both the district court and the circuit court granted the official’s motion for summary judgment, finding that Crawford’s complaint failed to state a claim.

Justice David Souter delivered the Supreme Court’s opinion. He relied on the natural meaning of the term “opposition” and the purposes of Title VII to hold that when an employee reports alleged sexual harassment in response to an employer’s questions, she benefits from Title VII protection. Souter pointed out that people can “oppose” something, such as slavery or capital punishment, without taking any affirmative action. In addition, Title VII does not give any indication that an employee who reports discrimination unprompted is any different from an employee who, using identical language, reports the discrimination in response to her employer’s inquiry.

The Supreme Court’s opinion rejected the reasoning of the Sixth Circuit Court of Appeals which required an employee to engage in “active, consistent” resistance to alleged harassment. The official argued that by eliminating the “active, consistent” test, the court would discourage employers from taking harassment claims seriously, or conducting thorough investigations. It reasoned that employers would stop asking their employees about workplace harassment if they thought these employees could use their participation in these investigations to claim retaliation if they subsequently suffered some adverse action for whatever reason.

The Supreme Court found this argument unconvincing. It concluded that employers have a significant incentive to conduct internal investigations into complaints of harassment in order to benefit from the possibility of an affirmative defense to a claim of discrimination. Under Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. Boca Raton, 524 U.S. 775 (1998), an employer can defend against vicarious liability for a hostile work environment by taking reasonable action to prevent and correct any discriminatory conduct. There is no affirmative defense, however, when the employer has taken a tangible employment action against the employee.

This decision represents a breakthrough both for employers and employees wishing to eradicate discrimination from the workplace. It provides a greater incentive for employees to give truthful answers to their employer’s inquiries into possible discrimination, as the law now clearly protects them from retaliation. Employers may therefore find their employees more willing to show candor about discrimination issues and have a better chance of more effectively dealing with these issues.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to https://www.passmanandkaplan.com/.

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