Antiretaliation Protection Extends To Employee Who Spoke Out About Discrimination Only After Being Questioned By Her Employer During An Internal Investigation

In Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, (— S.Ct. —, U.S., Jan. 26, 2009), the United States Supreme Court considered whether the protection provided by Title VII of the Civil Rights Act of 1964, which forbids an employer from retaliating against an employee for reporting gender or race discrimination in the workplace, “extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation.” The Supreme Court held that it does.


When the Metropolitan Government of Nashville and Davidson County, Tennessee (“Metropolitan”), began looking into rumors that its employee, Gene Hughes (“Hughes”), was sexually harassing other employees, a Metropolitan official asked Vicky Crawford (“Crawford”) if she had witnessed any inappropriate behavior. Crawford, who had worked for Metropolitan for 30 years, described several instances when Hughes had directed sexually harassing behavior toward her. During the investigation, two other employees also reported that they had been sexually harassed by Hughes. Metropolitan did not take any action against Hughes, but it fired Crawford and the two other employees who reported that Hughes had sexually harassed them. Metropolitan claimed that it fired Crawford for embezzlement.

Crawford filed a lawsuit against Metropolitan claiming that it fired her in retaliation for reporting Hughes’s behavior. The federal district court granted summary judgment in favor of Metropolitan on the ground that Crawford could not state a claim of retaliation “because she had not ‘instigated or initiated any complaint,’ but had ‘merely answered questions by investigators in an already-pending internal investigation, initiated by someone else.'” A United States Court of Appeals affirmed that decision.


The Supreme Court reversed the decision of the Court of Appeals and remanded the case for further proceedings. Under Title VII it is unlawful for an employer to discriminate against an employee because (1) the employee “has opposed any practice made an unlawful employment practice by this subchapter,” or (2) the employee “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 former clause is known as the “opposition clause,” and the latter is known as the “participation clause.” Crawford accused Metropolitan of violating both clauses. The Supreme Court, however, only addressed Crawford’s allegations in regard to the opposition clause.

Because the statute does not define the term “oppose,” it must be given its ordinary meaning, which is “‘to resist or antagonize . . . ; to contend against; to confront; resist; withstand.’” Under this definition, Crawford’s statements to the investigator about sexual harassment are covered by the opposition clause because she relayed her accounts of Hughes harassment and, as a result, she alleges that the answers she gave to the investigator antagonized Metropolitan to the point that it fired her on false pretense. In support of its decision, the Court refers to an Equal Employment Opportunity Commission guideline which states the following: “‘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 of Appeals had taken the stance that an employee is required to initiate or instigate a complaint in order to be covered by the opposition clause. The Supreme Court rejected this rule. “[N]othing 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.”

The Court was also unconvinced by Metropolitan’s argument that a decision finding that Crawford stated a claim for retaliation under the opposition clause would make it less likely that in the future employers will raise questions about possible discrimination. The Court found that employers have an incentive “to ferret out and put a stop to any discriminatory activity in their operations as a way to break the circuit of imputed liability.”


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