Does disclosing sexual harassment for the first time during an employer’s self-initiated internal investigation constitute protected activity under Title VII’s anti-retaliation provision, such that employees who disclose sexual harassment in this way are protected from being demoted or fired for doing so?
Vicky Crawford, a former employee of the Metro School District for Nashville and Davidson County, Tennessee, brought a Title VII anti-retaliation suit against her employers when she was fired from her job after participating in an internal investigation into sexual harassment rumors. During the investigation, Crawford confirmed the rumors by discussing specific incidents of sexual harassment. Crawford was fired shortly after the investigation was completed. Crawford filed a Title VII anti-retaliation suit, which the trial court dismissed at summary judgment. The Sixth Circuit upheld this decision, ruling that Title VII did not extend to employees who had taken part in an employer’s internal investigations but had not themselves instigated Equal Employment Opportunity Commission claims. On appeal to the Supreme Court, the Metropolitan School District claims that a broader reading of the Act would open up employers to countless Title VII claims, which could discourage employers from initiating internal investigations. Crawford contends that declining to extend the provisions of the anti-retaliation clause to employees who merely participate in internal investigations will discourage employees from taking part in such investigations due to the fear of retaliation, which will render such investigations pointless. How the Supreme Court decides the case will determine the scope of Title VII as applied to employee participation in internal investigations as well as what protections Title VII offers to employees and employers alike.
Questions as Framed for the Court by the Parties
Does the anti-retaliation provision of section 704(a) of Title VII of the 1964 Civil Rights Act protect a worker from being dismissed because she cooperated with her employer’s internal investigation of sexual harassment?
In 2002, the Metropolitan Government of Nashville and Davidson County (“Metro”) opened an internal investigation into allegations of sexual harassment against Dr. Gene Hughes (“Hughes”), the employee-relations director for the Metro School District. As Hughes was responsible for investigating sexual harassment claims, direct complaints were not raised with him. Instead, complaints indirectly reached the Metro legal department when another Metro employee reported that several employees had expressed concern about harassment and inappropriate behavior by Hughes.Metro assigned the Human Resources Department to investigate the complaint, and Human Resources interviewed several women who worked with Hughes, including Petitioner Vicky Crawford (“Crawford”). During the interview,Crawford related several specific instances of sexual harassment by Hughes. Crawford also stated during the interview that she was afraid that her participation in the internal investigation would result in her losing her job.
Ultimately, the investigation concluded that no witnesses could corroborate the extent of the harassment that the employees had complained of, so no disciplinary action was taken against Hughes. After the conclusions of the investigation had been released, Crawford was fired from Metro on charges of embezzlement; these claims were later “found to be unfounded.” Other women interviewed during the internal investigation were similarly discharged.
Crawford filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) and brought suit, alleging retaliation under Title VII of the Civil Rights Act of 1964. Title VII states that “it shall be unlawful practice for an employer to discriminate against any of his employees . . . because he has opposed any practice, made an unlawful employment practice by this subchapter, or because he has . . . participated in any manner in an investigation, proceeding, or hearing under this title.” Crawford asserted that she “opposed” the harassment by participating in the internal investigation, and that therefore her participation was protected activity under Title VII.The district court granted summary judgment in favor of Metro, stating that cooperation with an investigation did not constitute opposition under the statute.
On appeal, the U.S. Court of Appeals for the Sixth Circuit affirmed, holding that precedent dictates that unless an employee has participated in an EEOC investigation or engaged in persistent oppositional behavior, Title VII does not cover employee participation in an employer-initiated internal investigation. Crawford appealed to the Supreme Court of the United States, arguing that Title VII does cover participation in an employer’s internal investigation.
This case will give some answer to the question of the scope of Title VII’s anti-retaliation clause, which reads: “It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because [the employee] has opposed any practice made an unlawful employment practice by this subchapter, or because [the employee] has . . . participated in any manner in an investigation, proceeding, or hearing under this subchapter.”
Specifically, the court will look at whether this clause extends to employees who have taken part in internal investigations that they themselves have not instigated, and whether an anti-retaliation claim brought by employees in this situation can survive summary judgment, or whether it must be dismissed as being beyond the scope of Title VII. In doing this, the Court will look at the scopes of two activities that are protected under the clause: the meanings of “participation” and “opposition” under Title VII.
The respondent, Metropolitan Government of Nashville and Davidson County, Tennessee (“Metro”), argues that the use of the word “participation,” as used in the portion of Title VII stating that it is unlawful for an employer to discriminate against employees who have “participated in . . . any investigation, proceeding, or hearing under this subchapter,” must be narrowly read to only cover participation in investigations that are instigated following a claim with the Equal Employment Opportunity Commission (“EEOC”). According to Metro, this meaning is determined by the statutory language. Respondent argues that because the term “investigation” is used alongside “proceeding” or “hearing,” this implies that Congress intended that the clause should only extend to more formal proceedings, such as those investigating official EEOC claims. Respondent contends that this interpretation is most logical when considered with other actions an employee can be protected for under Title VII: an employee can “make a charge” or “testify” in such proceedings, implying that formal proceedings are required to qualify for the participation clause.
The petitioner, Vicky S. Crawford (“Crawford”), contends that Title VII’s language does not lend itself to a narrow interpretation; it cannot be read so that “participation” is limited to investigations, hearings, and proceedings following an EEOC claim. There is no limit to formal proceedings inherent in the language of Title VII, Crawford claims; because the participation clause refers broadly to investigations and proceedings, by using the more inclusive language “under this title” rather than “under section 706(b),” which refers specifically to EEOC, Congress deliberately intended for the language to encompass more than just EEOC claims. Crawford also points to the fact that other provisions in Title VII refer explicitly to EEOC proceedings, and thus she claims that the absence of that specific restriction in the anti-retaliation clause can be read to mean that the limitation does not apply to this clause.
According to the Sixth Circuit, Metro’s interpretation is in accordance with precedent, for it is a “general trend” for courts to interpret the participation clause as being limited to EEOC investigations rather than protecting employees participating in employer internal proceedings not part of such investigations. Crawford contends, however, that this general trend should not be read as precedent in light of other Supreme Court decisions, such as Faragher v. Boca Raton and Burlington Industries v. Ellerth, which point to the fact that the EEOC expressly urged employers to establish their own internal investigations, separate from EEOC-initiated investigations. Furthermore, in those cases, the court required that employees provide information about harassment to responsible personnel officials in order to be protected by Title VII’s participation clause, not specifying that employees were only protected in EEOC-initiated investigations. , Crawford contends that her actions in cooperating with the internal investigation did exactly what Faragher and Ellerth required in order to be protected by Title VII.
Crawford argues that her participation in Metro’s internal investigation is also protected under the Title VII opposition clause, for “opposition” cannot be interpreted so narrowly as to only cover active complaints employees have initiated. She defines opposition as “action (including making a statement) to end, redress or correct unlawful discrimination,” and states that informing the employer of the harassment helps resolve it. To support her argument, Crawford cites to the EEOC Compliance Manual, which states that an employee’s actions constitute opposition if they “would reasonably [be] interpreted as opposition.” Crawford contends that under these definitions, her actions are clearly “opposition,” as an employee participating in an internal investigation intends to “prevent” unlawful behavior by the very nature of her participation. Furthermore, Crawford contends that because the text of Title VII does not require that opposition be overt or that an individual initiate a complaint, it can be implied that it protects “cautious” opposition, such as participation in internal investigations, as well as overt opposition.
Metro advocates a narrower interpretation of “opposition,” following the interpretation adopted by the Sixth Circuit, which would require that an employee take active opposition to an employer’s behavior in order to be protected by Title VII’s anti-retaliation clause. Thus, according to Metro, the clause does not reach an employee who is merely reacting to a situation, such as answering questions in an internal investigation as Crawford was. Metro argues that it would not be in keeping with an employee’s duty to reasonably avoid harm according to Faragher and Ellerth if such a lax interpretation of “opposition” were allowed. Instead, Metro contends that requiring “opposition” to be overt and active, as the Sixth Circuit did, prevents the scenario where any action taken by a plaintiff, including a “casual conversation” about someone with another person, would be considered protected “opposition.” Metro contends that if employees who passively take part in internal investigations are protected under the Title VII opposition clause, this will result in employees who are dismissed independent of their cooperation in an internal investigation having the ability to “ambush” their employers by claiming retaliation. To avoid this outcome, Metro argues that a narrower definition of “opposition” be adopted, so that an employee’s actions must be seen as active “resistance” to the discrimination being alleged.
Crawford argues not only that there is no such limitation inherent in the language of Title VII, but also that even if there were, her actions would still meet this narrow definition of “opposition.” She claims that her statements during the investigation are clearly objections to sexual harassment. Furthermore, there need not be continued resistance, Crawford argues: “once a single act of opposition has occurred, the statutory requirement [of opposition] . . . has been fully satisfied.” Thus, Crawford contends that there is no need for further action by an employee in order to be protected by Title VII: her statements made during the internal investigation qualify as opposition.
In the United States, employers have a legal duty to try in good faith to prevent and correct sexual harassment. Therefore, many employers have developed internal investigation procedures in which they invite employees to corroborate a co-worker’s discrimination complaint. Internal investigations are important tools for eradicating workplace sexual harassment. According to the National Women’s Law Center (“NWLC”), at least half of U.S. women experience some workplace sexual harassment, and the harassment has cost employers hundreds of millions of dollars in lost productivity due to absenteeism, reduced morale, and reduced commitment to the organization.
This case will decide whether employee involvement in internal investigations of sexual harassment qualifies as “protected activity” under Title VII’s anti-retaliation provision, such that the provision protects employees from being demoted or fired for their statements. Crawford wants the provision to protect all employees in all internal investigations of possible Title VII violations. Respondent, Metropolitan Government of Nashville and Davidson County, Tennessee (“Metro”) says the provision should only apply to the investigations employers must conduct once charges are filed against them with the EEOC and employees who proactively complain of discrimination before contributing to an investigation.
The Court’s decision will have implications beyond Title VII claims. Federal Title VII law often guides judicial interpretation of similar anti-retaliation provisions in other statutes, such as the federal Americans with Disabilities Act and Age Discrimination in Employment Act as well as statutes in almost every state. According to the EEOC, from 1998 to 2007 the number of retaliation charges filed under all statutes climbed from 19,114 to 26,663, rising from 24.0% to 32.3% of all EEOC charges. .
Crawford worries that if the anti-retaliation provision did not apply in internal investigations, witnesses who had witnessed but not personally experienced harassment would have no protection against a dishonest employer who seeks to erase evidence of the harassment. Attorneys writing for the Tennessee Education Association and Nashville Education Association (“TEA et al.”)and theNational Employment Lawyers Association, American Association of University Professors, National Employment Law Project, and Public Justice, P.C. (“NELA et al.”) warn that a holding for Metro would thus discourage truthful employee participation in internal investigations, as employees may fear retaliation for their comments. If employees were not forthcoming, employers would have difficulty identifying and redressing mistreatment in their organizations.
However, the United States Chamber of Commerce (“COC”) and attorneys writing for the Equal Employment Advisory Council and National Federation of Independent Business Small Business Legal Center (“EEAC et al.”) caution that a ruling for Crawford would discourage thorough employer-initiated investigations. Employers could face expensive retaliation lawsuits if they demoted or terminated an underperforming employee who had once taken part in an internal investigation. Furthermore, the National School Boards Association claims that a holding for Crawford could encourage dishonest employees to make up accusations during an internal investigation in order to protect themselves against adverse employment action. Therefore,employers might decline to instigate investigations, or invite participation only from employees with strong performance records.
If internal investigations had more difficulty resolving employee complaints, more employees might resort to filing EEOC charges and lawsuits.In addition, the Leadership Conference on Civil Rightssays a ruling for Metro would increase EEOC charges because employees would file charges before cooperating with internal investigations. All parties would face the costs associated with these charges and lawsuits. The courts and the EEOC would confront heavier caseloads. Furthermore, increased litigation could heighten the tension between the employer and complaining employee, delaying successful resolution of the underlying issue.
In this case, the Supreme Court will clarify whether and to what extent Title VII’s anti-retaliation provision protects employees from being demoted or fired for taking part in employers’ internal investigations of sexual harassment. Petitioner Crawford argues that the provision must protect employees involved in the investigations in order to ensure effective investigations and combat workplace sexual harassment. Respondent argues that the plain meaning of Title VII’s anti-retaliation provision mandates limiting employers’ exposure to frivolous lawsuits by protecting employees only under certain circumstances. The outcome will likely impact employers’ willingness to initiate and thoroughly conduct internal investigations of sexual harassment as well as employees’ willingness to participate in the investigations.