Supreme Court Again Broadens Scope of Fair Employment Anti-Retaliation Provisions

The Supreme Court issued the latest of these decisions, Crawford v. Metropolitan Government of Nashville, 555 U.S. ___, ___ S. Ct. ___, 172 L. Ed. 2d 650 (2009) on Jan. 26, 2009. In Crawford, a unanimous Court held that the anti-retaliation provisions of Title VII extend to an employee who speaks out about discrimination, not on her own initiative, but in answering questions posed during her employer's internal investigation of a harassment complaint brought by another employee.

In Crawford, a Metro human resources officer began investigating rumors of sexual harassment by the Metro School District's employee relations director, Gene Hughes. During the investigation, Vicky Crawford, a 30-year Metro employee, was asked if she witnessed any “inappropriate behavior” by Hughes. In response, Crawford reported experiencing several instances of harassment, including: 1) in response to Crawford's greeting, “Hey Dr. Hughes, what's up?” Hughes grabbed his crotch and said, “[Y]ou know what's up.”; 2) Hughes had repeatedly “put his crotch up to her window”; and 3) on one occasion Hughes had entered her office and “grabbed her head and pulled it to his crotch.” There was no EEOC charge pending at the time Metro conducted its investigation and interviewed Crawford.

Two other employees also reported being harassed by Hughes. At the conclusion of its investigation, Metro took no action against Hughes, but fired Crawford and the other two accusers soon thereafter. In Crawford's case, Metro said the termination was for embezzlement.

Crawford filed a lawsuit under Title VII alleging that her discharge was in retaliation for her participation in Metro's internal investigation. The anti-retaliation provision of Title VII contains two clauses ' the “opposition clause” and the “participation clause.” 42 U.S.C. ' 2000e-3(a). The act makes it unlawful for an employer to discriminate against an employee: 1) “because [the employee] has opposed any practice made an unlawful employment practice by this subchapter” (the opposition clause); or 2) because the employee “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter” (the participation clause). Crawford claimed that her disclosure of sexually harassing conduct by Hughes during Metro's investigation constituted opposition to discrimination and that her involvement in the investigation constituted participation protected by Title VII.

The District Court disagreed and granted Metro's motion for summary judgment on the grounds that Crawford “could not satisfy the opposition clause because she had not instigated or initiated any complaint, but had merely answered questions by investigators on an already-pending internal investigation initiated by someone else.” The District Court also concluded that Crawford's claim failed the participation clause, which it determined was limited to an employee's participation in an internal investigation conducted in connection with a pending EEOC charge (as opposed to an internal complaint).

The Sixth Circuit affirmed the trial court. It held that Crawford did not satisfy Title VII's opposition clause, which “demands active, consistent 'opposing' activities” to warrant protection. The appellate court deemed it significant that Crawford did not instigate or initiate a complaint prior to her participation in Metro's investigation and she did not take any further action after her interview and prior to her discharge. Like the trial court, the Sixth Circuit determined that Crawford failed to satisfy the participation clause because her interview did not take place in the context of an internal investigation of a pending EEOC charge.

The Supreme Court reversed and unanimously held that the term “oppose,” although undefined by Title VII, should be read more broadly. In writing for the Court, Justice Souter concluded that Crawford's statements during Metro's investigation were covered by Title VII's opposition clause. Justice Souter relied on the dictionary definition of “oppose” and concluded that the ordinary use of the word included Crawford's passive conduct in responding to, rather than initiating, Metro's internal investigation. Justice Souter wrote:

'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 ' . There is ' no reason to doubt that a person can 'oppose' by responding to someone else's question just as surely as by provoking the discussion, and nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her initiative but not one who reports the same discrimination in the same words when her boss asks a question.

In addition to arguing the statutory language of Title VII, Metro argued, as a matter of policy, that if the bar for retaliation claims were lowered, employers would be less likely to ask questions and investigate reports of discrimination. The Supreme Court was not swayed. First, it noted that under the affirmative defense available to employers who exercise reasonable care to prevent and correct discriminatory conduct articulated in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. Boca Raton, 524 U.S. 775 (1998), employers have a strong incentive to investigate and address reports of harassment and discrimination as a way to break the chain of imputed liability. Second, the Court pointed out if that there were clear law that an employee who reported unlawful conduct in response to an employer's questions could be penalized without remedy, prudent employees would have good reason to keep quiet about discriminatory conduct. This would place employees with knowledge of unlawful activity in an untenable position and would frustrate the purposes of Title VII. Thus, the Court reversed the Sixth Circuit and remanded the matter for further proceedings.

Humphries

Crawford came on the heels of three other Supreme Court decisions expanding the scope of the anti-retaliation provisions contained in federal fair employment statutes. On May 27, 2008, the Court issued its decision in CBOCS West, Inc. v. Humphries, ___ U.S. ___, 128 S. Ct. 1951, 170 L. Ed. 2d 864 (2008). In Humphries, the Court determined that Section 1981 of the Civil Rights Act of 1866 encompasses retaliation claims as well as claims of race discrimination. In that case, Hedrick Humphries claimed that his employer discharged him because he is black and because he reported that another employee was discharged for race-based reasons.

Humphries asserted claims under Title VII and Section 1981, a post-Civil War statute prohibiting race discrimination in the right of citizens “to make and enforce contracts.” While Section 1981 has long been held to prohibit race discrimination in the workplace, unlike Title VII, it does not contain a provision expressly prohibiting retaliation. Based primarily on principles of stare decisis, the majority concluded that despite the lack of an express anti-retaliation provision, Section 1981 encompasses liability for retaliation as well as for race discrimination.

Potter

On the same day the Court issued Humphries, it also issued Gomez-Perez v. Potter, ___ U.S. ___, 128 S. Ct. 1931, 170 L. Ed. 2d 887 (2008). In Potter, Myrna Gomez-Perez claimed that she was retaliated against after she filed an age discrimination complaint against her supervisor. The federal-sector provision of the Age Discrimination in Employment Act, unlike the private-sector provision, does not explicitly prohibit retaliation. Consequently, both the district court and the First Circuit held that the federal-sector ADEA provision, which prohibits only “discrimination based on age,” did not cover retaliation.

As in Humphries, the Court was not persuaded by the fact that the statutory text at issue lacked an explicit provision against retaliation. The Court determined that the federal-sector ADEA provision authorized claims of retaliation and remanded the matter for further proceedings.

Burlington

Finally, in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006), the Court held that Title VII's anti-retaliation provision prohibits not merely materially adverse employment actions such as terminations and demotions, but that it covers any retaliatory conduct which might dissuade a reasonable employee from reporting a claim of discrimination.

In Burlington, the Court noted that Title VII's anti-retaliation provision is broader than its anti-discrimination provision in that the anti-retaliation provision is not limited to actions affecting an employee's terms and conditions of employment. Thus, the Court concluded that in addition to lesser workplace sanctions such as suspensions or transfers, Title VII's protections against retaliation extend beyond employment-related harm to include any conduct which might reasonably deter a victim of discrimination from complaining to the EEOC, the courts or the employer ' including conduct outside the workplace.

What This Means for Employers

These four decisions suggest a focus by the Supreme Court in clarifying and, if the trend continues, expanding employees' statutory protections against retaliation in the workplace. Under Crawford, an increased number of employees now fall in the purview of Title VII's anti-retaliation provision. Even though Crawford considered Title VII, lower courts will undoubtedly adopt the principles of this ruling to the anti-retaliation provisions in similar workplace statutes such as the ADA, the ADEA, the FMLA and others. Employers are well-advised to take steps now to protect their organizations from claims of retaliation.

First, employers should review the anti-retaliation provisions in their employee handbooks to ensure that they are broad enough to prohibit retaliation against individuals who participate in internal discrimination or harassment investigations in addition to those who initiate reports of discrimination. These anti-retaliation provisions should also be sufficiently broad to prohibit all forms of retaliation against employees who engage in protected conduct.

Second, employers should be thoughtful in their approach to conducting internal investigations related to discrimination and harassment complaints. They should endeavor to limit the scope and nature of the questions posed during witness interviews to those who are known to have or to likely have relevant information. They should not, however, avoid interviewing potential witnesses for the sole purpose of circumventing the broad scope of the anti-retaliation protections. Interviewers should take detailed interview notes to identify each individual who participated in the investigation and to document the information provided by each person. Employees and managers should be reminded of the employer's policy against retaliation arising from the employer's investigation. Employers should also disseminate on a “need to know” basis information obtained during witness interviews as well as the results of the investigation. For example, it may be prudent not to disclose to an employee's direct manager that the employee is participating in an internal investigation, or the content of the interview, unless that manager has a business need to know that information.

Third, human resources personnel and managers should be trained concerning the company's anti-retaliation policy so that when they conduct an investigation, they understand that individuals whom they interview are protected from retaliation in the same way as the individual who instigated the investigation. They should also understand that retaliation is interpreted broadly ' it includes any conduct which would discourage an employee from coming forward with a report of discrimination. They also should be trained to follow up on all reports of discrimination and retaliation.

Fourth, when making employment decisions, employers must exercise caution when considering action against an employee who has filed a complaint of discrimination or who has participated in an internal investigation. At all times, employers should be sure to identify, document and communicate the employee's performance deficiencies to establish a strong factual record of non-retaliatory reasons for the disciplinary action. Moreover, disciplinary action should be consistent with the company's policies as well as its actions towards other employees who have committed the same infraction or have had the same performance issues. Training managers to address performance and conduct issues on an ongoing basis as issues arise will go a long way toward preventing and defending against retaliation claims.

James F. Shea is a partner in the Hartford, CT, office of Jackson Lewis LLP. He advises employers on all aspects of employment law and represents clients before state and federal courts and administrative agencies. Shea concentrates his practice on employment litigation and preventive counseling and frequently lectures and writes on workplace law topics. He can be reached at [email protected].

The end of the Bush administration and the first six weeks of the Obama administration resulted in significant changes to key federal fair employment statutes. Notably, in September 2008, the Americans with Disabilities Act Amendments Act was signed by President Bush; in November 2008, the U.S. Department of Labor issued its final revised regulations applicable to the Family and Medical and Leave Act, and in January 2009, the Lilly Ledbetter Fair Pay Restoration Act was signed by President Obama. Other major legislative efforts, including The Paycheck Fairness Act, which would alter key provisions of the Equal Pay Act of 1963, and the Employee Free Choice Act, which would, among other things, amend the National Labor Relations Act to eliminate secret ballot elections for selection of union representation, are under consideration in Washington.

These statutory and regulatory enactments have been widely debated and publicized as part of the legislative process. Equally important, but without any of the public comment and debate associated with major legislative changes, have been four U.S. Supreme Court decisions issued since June 2006, which have significantly expanded the scope of the anti-retaliation provisions of Title VII of the Civil Rights Act, the Age Discrimination in Employment Act and 42 U.S.C. ' 1981.

Crawford

The Supreme Court issued the latest of these decisions, Crawford v. Metropolitan Government of Nashville , 555 U.S. ___, ___ S. Ct. ___, 172 L. Ed. 2d 650 (2009) on Jan. 26, 2009. In Crawford, a unanimous Court held that the anti-retaliation provisions of Title VII extend to an employee who speaks out about discrimination, not on her own initiative, but in answering questions posed during her employer's internal investigation of a harassment complaint brought by another employee.

In Crawford, a Metro human resources officer began investigating rumors of sexual harassment by the Metro School District's employee relations director, Gene Hughes. During the investigation, Vicky Crawford, a 30-year Metro employee, was asked if she witnessed any “inappropriate behavior” by Hughes. In response, Crawford reported experiencing several instances of harassment, including: 1) in response to Crawford's greeting, “Hey Dr. Hughes, what's up?” Hughes grabbed his crotch and said, “[Y]ou know what's up.”; 2) Hughes had repeatedly “put his crotch up to her window”; and 3) on one occasion Hughes had entered her office and “grabbed her head and pulled it to his crotch.” There was no EEOC charge pending at the time Metro conducted its investigation and interviewed Crawford.

Two other employees also reported being harassed by Hughes. At the conclusion of its investigation, Metro took no action against Hughes, but fired Crawford and the other two accusers soon thereafter. In Crawford's case, Metro said the termination was for embezzlement.

Crawford filed a lawsuit under Title VII alleging that her discharge was in retaliation for her participation in Metro's internal investigation. The anti-retaliation provision of Title VII contains two clauses ' the “opposition clause” and the “participation clause.” 42 U.S.C. ' 2000e-3(a). The act makes it unlawful for an employer to discriminate against an employee: 1) “because [the employee] has opposed any practice made an unlawful employment practice by this subchapter” (the opposition clause); or 2) because the employee “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter” (the participation clause). Crawford claimed that her disclosure of sexually harassing conduct by Hughes during Metro's investigation constituted opposition to discrimination and that her involvement in the investigation constituted participation protected by Title VII.

The District Court disagreed and granted Metro's motion for summary judgment on the grounds that Crawford “could not satisfy the opposition clause because she had not instigated or initiated any complaint, but had merely answered questions by investigators on an already-pending internal investigation initiated by someone else.” The District Court also concluded that Crawford's claim failed the participation clause, which it determined was limited to an employee's participation in an internal investigation conducted in connection with a pending EEOC charge (as opposed to an internal complaint).

The Sixth Circuit affirmed the trial court. It held that Crawford did not satisfy Title VII's opposition clause, which “demands active, consistent 'opposing' activities” to warrant protection. The appellate court deemed it significant that Crawford did not instigate or initiate a complaint prior to her participation in Metro's investigation and she did not take any further action after her interview and prior to her discharge. Like the trial court, the Sixth Circuit determined that Crawford failed to satisfy the participation clause because her interview did not take place in the context of an internal investigation of a pending EEOC charge.

The Supreme Court reversed and unanimously held that the term “oppose,” although undefined by Title VII, should be read more broadly. In writing for the Court, Justice Souter concluded that Crawford's statements during Metro's investigation were covered by Title VII's opposition clause. Justice Souter relied on the dictionary definition of “oppose” and concluded that the ordinary use of the word included Crawford's passive conduct in responding to, rather than initiating, Metro's internal investigation. Justice Souter wrote:

'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 ' . There is ' no reason to doubt that a person can 'oppose' by responding to someone else's question just as surely as by provoking the discussion, and nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her initiative but not one who reports the same discrimination in the same words when her boss asks a question.

In addition to arguing the statutory language of Title VII, Metro argued, as a matter of policy, that if the bar for retaliation claims were lowered, employers would be less likely to ask questions and investigate reports of discrimination. The Supreme Court was not swayed. First, it noted that under the affirmative defense available to employers who exercise reasonable care to prevent and correct discriminatory conduct articulated in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) , and Faragher v. Boca Raton , 524 U.S. 775 (1998), employers have a strong incentive to investigate and address reports of harassment and discrimination as a way to break the chain of imputed liability. Second, the Court pointed out if that there were clear law that an employee who reported unlawful conduct in response to an employer's questions could be penalized without remedy, prudent employees would have good reason to keep quiet about discriminatory conduct. This would place employees with knowledge of unlawful activity in an untenable position and would frustrate the purposes of Title VII. Thus, the Court reversed the Sixth Circuit and remanded the matter for further proceedings.

Humphries

Crawford came on the heels of three other Supreme Court decisions expanding the scope of the anti-retaliation provisions contained in federal fair employment statutes. On May 27, 2008, the Court issued its decision in CBOCS West, Inc. v. Humphries , ___ U.S. ___, 128 S. Ct. 1951, 170 L. Ed. 2d 864 (2008). In Humphries, the Court determined that Section 1981 of the Civil Rights Act of 1866 encompasses retaliation claims as well as claims of race discrimination. In that case, Hedrick Humphries claimed that his employer discharged him because he is black and because he reported that another employee was discharged for race-based reasons.

Humphries asserted claims under Title VII and Section 1981, a post-Civil War statute prohibiting race discrimination in the right of citizens “to make and enforce contracts.” While Section 1981 has long been held to prohibit race discrimination in the workplace, unlike Title VII, it does not contain a provision expressly prohibiting retaliation. Based primarily on principles of stare decisis, the majority concluded that despite the lack of an express anti-retaliation provision, Section 1981 encompasses liability for retaliation as well as for race discrimination.

Potter

On the same day the Court issued Humphries , it also issued Gomez-Perez v. Potter , ___ U.S. ___, 128 S. Ct. 1931, 170 L. Ed. 2d 887 (2008). In Potter, Myrna Gomez-Perez claimed that she was retaliated against after she filed an age discrimination complaint against her supervisor. The federal-sector provision of the Age Discrimination in Employment Act, unlike the private-sector provision, does not explicitly prohibit retaliation. Consequently, both the district court and the First Circuit held that the federal-sector ADEA provision, which prohibits only “discrimination based on age,” did not cover retaliation.

As in Humphries, the Court was not persuaded by the fact that the statutory text at issue lacked an explicit provision against retaliation. The Court determined that the federal-sector ADEA provision authorized claims of retaliation and remanded the matter for further proceedings.

Burlington

Finally, in Burlington Northern & Santa Fe Railway Co. v. White , 548 U.S. 53, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006), the Court held that Title VII's anti-retaliation provision prohibits not merely materially adverse employment actions such as terminations and demotions, but that it covers any retaliatory conduct which might dissuade a reasonable employee from reporting a claim of discrimination.

In Burlington, the Court noted that Title VII's anti-retaliation provision is broader than its anti-discrimination provision in that the anti-retaliation provision is not limited to actions affecting an employee's terms and conditions of employment. Thus, the Court concluded that in addition to lesser workplace sanctions such as suspensions or transfers, Title VII's protections against retaliation extend beyond employment-related harm to include any conduct which might reasonably deter a victim of discrimination from complaining to the EEOC, the courts or the employer ' including conduct outside the workplace.

What This Means for Employers

These four decisions suggest a focus by the Supreme Court in clarifying and, if the trend continues, expanding employees' statutory protections against retaliation in the workplace. Under Crawford, an increased number of employees now fall in the purview of Title VII's anti-retaliation provision. Even though Crawford considered Title VII, lower courts will undoubtedly adopt the principles of this ruling to the anti-retaliation provisions in similar workplace statutes such as the ADA, the ADEA, the FMLA and others. Employers are well-advised to take steps now to protect their organizations from claims of retaliation.

First, employers should review the anti-retaliation provisions in their employee handbooks to ensure that they are broad enough to prohibit retaliation against individuals who participate in internal discrimination or harassment investigations in addition to those who initiate reports of discrimination. These anti-retaliation provisions should also be sufficiently broad to prohibit all forms of retaliation against employees who engage in protected conduct.

Second, employers should be thoughtful in their approach to conducting internal investigations related to discrimination and harassment complaints. They should endeavor to limit the scope and nature of the questions posed during witness interviews to those who are known to have or to likely have relevant information. They should not, however, avoid interviewing potential witnesses for the sole purpose of circumventing the broad scope of the anti-retaliation protections. Interviewers should take detailed interview notes to identify each individual who participated in the investigation and to document the information provided by each person. Employees and managers should be reminded of the employer's policy against retaliation arising from the employer's investigation. Employers should also disseminate on a “need to know” basis information obtained during witness interviews as well as the results of the investigation. For example, it may be prudent not to disclose to an employee's direct manager that the employee is participating in an internal investigation, or the content of the interview, unless that manager has a business need to know that information.

Third, human resources personnel and managers should be trained concerning the company's anti-retaliation policy so that when they conduct an investigation, they understand that individuals whom they interview are protected from retaliation in the same way as the individual who instigated the investigation. They should also understand that retaliation is interpreted broadly ' it includes any conduct which would discourage an employee from coming forward with a report of discrimination. They also should be trained to follow up on all reports of discrimination and retaliation.

Fourth, when making employment decisions, employers must exercise caution when considering action against an employee who has filed a complaint of discrimination or who has participated in an internal investigation. At all times, employers should be sure to identify, document and communicate the employee's performance deficiencies to establish a strong factual record of non-retaliatory reasons for the disciplinary action. Moreover, disciplinary action should be consistent with the company's policies as well as its actions towards other employees who have committed the same infraction or have had the same performance issues. Training managers to address performance and conduct issues on an ongoing basis as issues arise will go a long way toward preventing and defending against retaliation claims.

James F. Shea is a partner in the Hartford, CT, office of Jackson Lewis LLP. He advises employers on all aspects of employment law and represents clients before state and federal courts and administrative agencies. Shea concentrates his practice on employment litigation and preventive counseling and frequently lectures and writes on workplace law topics. He can be reached at [email protected].