Supreme Court: Answers Given During Employer’s Internal Investigation Can Constitute Protected Opposition under Title VII.

Today, a unanimous United States Supreme Court reversed a judgment affirmed by the Sixth Circuit Court of Appeals in Cincinnati in favor of a Tennessee school district which fired an employee (for alleged embezzlement) after she answered questions during an internal investigation into rumors of sexual harassment which revealed that she felt sexually harassed by the school’s employee relations director. Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, No. 06-1595. The Court held that the protection of Title VII’s opposition clause “extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation.” In doing so, the Court rejected the employer’s argument that the employee’s passive response to questions during the internal investigation was not entitled to the same legal protection given to employees who affirmatively lodge a complaint of harassment with the employer or an agency because it would discourage employers from conducting internal investigations out of fear of creating new classes of protected employees. The Court concluded that “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.”

According to the Court’s opinion, the employer “began looking into rumors of sexual harassment by [its] employee relations director” in 2002. When the investigator asked the plaintiff, “a 30-year Metro employee, whether she had witnessed ‘inappropriate behavior’ on the part of” the director, the plaintiff “described several instances of sexually harassing behavior: once, [the director] had answered her greeting, ‘Hey Dr. Hughes, what’s up?,’ by grabbing his crotch and saying ‘[Y]ou know what’s up’; he had repeatedly ‘put his crotch up to[her] window’; and on one occasion he had entered her office and ‘grabbed her head and pulled it to his crotch,’. . . Two other employees also reported being sexually harassed by [the director.]” Although the school district took no action against the director, it fired the plaintiff “and the two other accusers soon after finishing the investigation, saying in [the plaintiff’s] case that it was for embezzlement.” In turn, the plaintiff filed a charge of retaliation with the EEOC and ultimately filed suit in federal court.

“The Title VII antiretaliation provision has two clauses, making it “an unlawful employment practice for an employer to discriminate against any of his employees . . . [1] because he has opposed any practice made an unlawful employment practice by this subchapter, or [2] because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U. S. C. §2000e–3(a). The one is known as the “opposition clause,” the other as the “participation clause,” and [the plaintiff] accused [the school district] of violating both.” The district court granted summary judgment for the employer on the grounds that the plaintiff had failed to engage in activity protected under Title VII. The Sixth Circuit affirmed.

In reversing, the Court noted that “’Oppose’ goes beyond ‘active, consistent’ behavior in ordinary discourse, where we would naturally use the word to speak of someone who has taken no action at all to advance a position beyond disclosing it. 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.”

The Court was unconcerned with disincentives for an employer to conduct a thorough internal investigation because it felt that the affirmative defenses created in its Ellerth and Faragher decisions were sufficient incentive for an employer to conduct internal investigations of sexual harassment rumors and allegations. Indeed, it felt that a contrary decision in this case would undermine the structure it had created in those earlier cases: “If it were clear law that an employee who reported discrimination in answering an employer’s questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses against themselves or against others. . . . The appeals court’s rule would thus create a real dilemma for any knowledgeable employee in a hostile work environment if the boss took steps to assure a defense under our cases. If the employee reported discrimination in response to the enquiries, the employer might well be free to penalize her for speaking up. But if she kept quiet about the discrimination and later filed a Title VII claim, the employer might well escape liability, arguing that it “exercised reasonable care to prevent and correct [any discrimination] promptly” but “the plaintiff employee unreasonably failed to take advantage of . . .preventive or corrective opportunities provided by the employer.”

Finally, the Court rejected any requirement that the plaintiff bring her own internal complaint before filing a Charge or lawsuit as indicated by the Court’s earlier discussions in Faragher and Ellerth of an employee’s obligation to exercise reasonable care to avoid and/or mitigate the harm. “But that mitigation requirement only applies to employees who are suffering discrimination and have the opportunity to fix it by ‘tak[ing] advantage of any preventive or corrective opportunities provided by the employer,’; it is based on the general principle “that a victim has a duty ‘to use such means as are reasonable under the circumstances to avoid or minimize . . . damages,’ . . . We have never suggested that employees have a legal obligation to report discrimination against others to their employer on their own initiative, let alone lose statutory protection by failing to speak. Extending the mitigation requirement so far would make no sense; employees will often face retaliation not for opposing discrimination they themselves face, but for reporting discrimination suffered by others. Thus, they are not “victims” of anything until they are retaliated against, and it would be absurd to require them to “mitigate” damages they may be unaware they will suffer.”

Nonetheless, the Court recognized that not every description of harassing behavior during an internal investigation will constitute protected conduct: “It is true that one can imagine exceptions, like an employee’s description of a supervisor’s racist joke as hilarious, but these will be eccentric cases, and this is not one of them” even though there was evidence (which could not be fully considered at the summary judgment stage of the litigation) that the plaintiff had told the director to “bite me” and “flip[ed] him a bird” because the plaintiff “gave no indication that [his] gross clowning was anything but offensive to her.”

Insomniacs can read the Supreme Court’s full opinion at