Labor Alert: US Supreme Court Employment Case — Crawford v. Metropolitan Gov't of Nashville

In May 2008, Monica Velazquez in Strasburger's Collin County office reported on the conflict between the federal circuit courts regarding what constitutes "opposition" to discriminatory harassment during the course of an employer's own internal investigation. Monday, January 26, 2009, the United States Supreme Court resolved the conflict. In Crawford v. Metropolitan Government of Nashville and Davidson County ("Metro"),¹ the Court held that an employee who discloses, for the first time, prior harassment during an employer's internal investigation of alleged harassment by another employee has effectively "opposed" a discriminatory practice. Pursuant to this holding, if the employee who participated in the investigation is later subjected to an adverse employment action, she can claim the employer retaliated against her for disclosing the information in response to questioning during the investigation.

The Crawford case began when Metro, the employer, was internally investigating sexual harassment claims filed by one of its employees. No charge of discrimination or harassment had been filed with the Equal Employment Opportunity Commission (EEOC) at that time. During the course of the investigation, Metro interviewed Crawford, a 30-year employee who was not the person who initiated the harassment claim. When asked whether she had ever witnessed the accused harasser acting inappropriately, Crawford described some past incidents where the accused harasser had acted inappropriately towards her. Crawford had never previously reported these inappropriate actions to Metro. Moreover, following this disclosure, Crawford never formally filed a complaint regarding these inappropriate actions.

Shortly thereafter, Metro terminated Crawford for embezzlement. Crawford filed a retaliation claim, alleging that Metro terminated her in retaliation for disclosing the prior harassment in response to the questions asked in the internal investigation.

The lower courts dismissed Crawford's claim on the grounds that she had neither "opposed" a discriminatory practice nor "participated" in an investigation of a charge that was pending before the EEOC. The lower courts held that Crawford had not "opposed" unlawful harassment because she never initiated her own complaint or even took further action on the information she disclosed during the investigation of the other employee's complaint. Crawford also had not participated in a pending EEOC investigation because no charge had been filed with the EEOC. As such, according to the lower courts, Crawford had not engaged in protected activity under Title VII by which she was protected from retaliation.

The United States Supreme Court disagreed. Although it did not address Crawford's argument that she was protected from retaliation for "participating" in an investigation, it held that Crawford had effectively "opposed" discrimination and was, therefore, protected from retaliation.

The Court rejected the argument that "opposition" to discrimination requires "active" and "consistent" behavior that exhibits opposition to harassment. The Court instead focused on the substance of Crawford's actions, explaining that Crawford's statements in response to investigation questions were a "disapproving account" of the prior harassment, and that Crawford was "resistant" and "antagonistic" towards these prior incidents. The Court also reiterated the overall purpose of the anti-retaliation statutes, noting that it would be a "freakish rule" that protected only 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." Finally, the Court dismissed the idea that employers may be less inclined to investigate harassment claims, since its holding supposedly "lowered the bar" for retaliation claims. The Court noted that employers still have a powerful incentive to respond to and investigate claims because doing so allows them to rely on the Ellerth and Faragher affirmative defenses.¹

The Crawford holding confirms the idea that employees must be able to freely discuss claims of harassment, regardless of whether they have filed a formal complaint, without fearing retaliation. However, it also creates an incentive for employees to either devise harassment claims for which they had not previously filed complaints, or to allege, post-termination, that they disclosed harassing behavior during internal investigations. Employers would therefore be wise to keep careful and accurate records of who was interviewed during an internal investigation and what information was provided. Also, as is always the case, employers should continue to consistently document and maintain records of performance issues.

¹Employers may claim this defense if no "tangible employment action has occurred" (i.e. – termination) and the employer exercises reasonable care to prevent and correct promptly discrimination and the employee unreasonably fails to take advantage of such corrective or preventative opportunities.