“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 asked a question.”
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Sexual Harassment Update:
U.S. Supreme Court
Protects Investigation Participant
From Retaliation
By Christopher W. Olmsted
Both federal and California law protect employees who oppose illegal harassment or discrimination, as well as employees who participate in an investigation. What exactly does it mean to “oppose” a practice?
The U.S. Supreme Court examined this question in a decision published on January 26, 2009 titled Crawford v. Metropolitan Government of Nashville. Employers should note this decision because it clarifies the anti-retaliation aspect of Title VII, and by analogy, the California Fair Employment and Housing Act (“FEHA”).
Interviewed Employee Mentions Harassment
Vicky Crawford didn’t complain about sexual harassment, but she reported such conduct during a harassment investigation. Metropolitan Government of Nashville and Davidson County, Tennessee (Metro), began looking into rumors of sexual harassment by the Metro School District's employee relations director, Gene Hughes.
When Ms. Frazier, a Metro human resources officer, asked Ms. Crawford whether she had witnessed "inappropriate behavior" on the part of Hughes, Ms. Crawford described several instances of sexually harassing behavior: once, Hughes 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 Hughes.
Although Metro took no action against Hughes, it did fire Ms. Crawford and the two other accusers soon after finishing the investigation, saying in Crawford's case that it was for embezzlement. Crawford claimed Metro was retaliating for her report of Hughes's behavior and filed a charge of a Title VII violation with the Equal Employment Opportunity Commission (EEOC).
The Lawsuit
Ms. Crawford filed suit under Title VII of the Civil Rights Act of 1964, claiming that Metro was retaliating for her report of Hughes's behavior, in violation of 42 U. S. C. §2000e-3(a).
That section of Title VII makes it unlawful "for an employer to discriminate against any ... employe[e]" who (1) "has opposed any practice made an unlawful employment practice by this subchapter" (opposition clause), or (2) "has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter" (participation clause).
Metro argued in a motion for summary judgment that Ms. Crawford was not protected by the statute because she did not oppose any activities. The employer argued that the statute required "active, consistent" opposing activities, whereas Ms. Crawford had not initiated any complaint prior to the investigation. The trial court agreed, granting the motion.
Supreme Court Reverses
On appeal, the U.S. Supreme Court reversed the decision. The court held that the antiretaliation provision's protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer's internal investigation.
Because "oppose" is undefined by statute, it carries its ordinary dictionary meaning of resisting or contending against. A person can “oppose” conduct by responding to someone else's questions just as surely as by provoking the discussion.
“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 asked a question.”
Relying on an EEOC interpretation of the law, the Court wrote: "When an employee communicates to her employer a belief that the employer has engaged in ... a form of employment discrimination, that communication virtually always constitutes the employee's opposition to the activity.”
The Court observed that the trial court’s interpretation of the law could discourage employees to come forward with complaints during an investigation, if the employee could be penalized with no remedy.
The Court passed on the issue of whether Ms. Crawford was protected by the “participation clause.”
The Court’s ruling is not surprising. Courts have been very protective of employees reporting illegal conduct.
The decision should serve as a reminder to employers that complainants are not the only protected parties in a discrimination/harassment investigation. The protections are quite broad.
Employers needing to take legitimate adverse action against employees who happen to have recently discussed illegal conduct during an investigation need to take care, therefore, to avoid creating the appearance of retaliation. Such decisions should be carefully reviewed with HR professionals and legal counsel. In some instances, deferring or refraining from the adverse action may be the best course.
More Legal Update articles.
Download entire February 2009 Legal Update in PDF format.
This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2009 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
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