Supreme Court Expands Scope of
Protected Activity in Retaliation Cases
Keeping with its line of recent cases that make it easier for individuals to prevail in retaliation lawsuits, the United States Supreme Court recently ruled in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, that an employee who speaks out or answers questions about a co-worker's improper conduct during an internal discrimination or harassment investigation participates in a "protected activity" under Title VII of the Civil Rights Act of 1964 (Title VII). According to the Court's decision in Crawford, any adverse action taken against the employee/witness after an investigation can subject an employer to a retaliation claim under Title VII.
Title VII's Anti-Retaliation Provision
Title VII's anti-retaliation provision prohibits retaliation against an employee because the employee has: (i) "opposed any practice made an unlawful employment practice by [Title VII]" (the "opposition clause"); or (ii) "made a charge, testified, assisted or participated in any manner in an investigation, proceeding, or hearing under [Title VII]" (the "participation clause"). Before the Supreme Court's decision in Crawford, several courts disagreed on whether participation in an investigation fell under either the opposition clause or the participation clause and could be considered a protected activity under Title VII.
The Crawford Decision
In the Crawford case, Ms. Crawford was questioned as a potential witness to a sexual harassment investigation filed by a co-worker. Ms. Crawford admitted that she, too, had been sexually harassed by the supervisor who was the subject of the investigation. Following the investigation, the employer took no action against the alleged harasser. Instead, the employer terminated Ms. Crawford's employment shortly after her witness interview, allegedly because of embezzlement by Ms. Crawford.
Ms. Crawford denied the employer's allegation of embezzlement and filed a lawsuit, alleging retaliation based on her responses during the harassment investigation. The lawsuit made it all the way to the U.S. Supreme Court, which held that Ms. Crawford had been terminated as retaliation for her statement of harassment. According to the Court, Ms. Crawford's mid-investigation admission was protected by Title VII's "opposition clause." The Court explained that Title VII's opposition clause should be construed broadly to include an employee's response to investigation questions about alleged unlawful discrimination. To find otherwise, in the Court's view, would create a "freakish" rule protecting employees who initiate discrimination complaints but not those who make the same report when responding to questions during an investigation. The Court also found that to exclude a statement such as Crawford's from the protection against retaliation would undermine prior Supreme Court decisions encouraging employers to investigate and remedy harassment complaints.
What Employers Should Do Now to Protect Themselves in Light of the Crawford Decision
The Crawford decision makes it easier for employees to bring lawsuits for retaliation based on statements made during discrimination and harassment investigations. Employers should not stop investigating complaints of discrimination or harassment in hopes of avoiding liability for issues raised during internal investigations. Rather, employers should continue to investigate all complaints (or make a determination that an investigation is not necessary). When an investigation participant makes any statement that could be construed as a complaint of discrimination or harassment, the employer should treat that statement as a new complaint and initiate an investigation into that complaint as well.
The decision in Crawford also highlights the need for employers to maintain adequate documentation of all disciplinary and termination decisions, especially for those decisions that concern individuals who have participated in internal discrimination or harassment investigations. Documentation should prove the legitimate, non-discriminatory and non-retaliatory reasons for each adverse employment action so employers are able to defend against retaliation allegations.
Whom to Contact
Please contact Laura Pfeiffer, Mark Pihart, or Megan Ruwe at Winthrop & Weinstine, P.A., if you have any questions regarding the Supreme Court's decision in Crawford, the anti-retaliation provisions in Title VII, or internal discrimination or harassment investigations. We're here to help.
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