US Supreme Court Broadens Definition of “Opposition”; for Retaliation Claims; Crawford v Metropolitan Government of Nashville, 1–26-09

1/26/09: In Craw­ford v. Met­ro­pol­i­tan Gov­ern­ment of Nashville and David­son Coun­ty, Ten­nessee, 129 S. Ct. 846 (2009), the US Supreme Court unan­i­mous­ly ruled that an employ­ee engaged in pro­tect­ed activ­i­ty under Title VII’s retal­i­a­tion pro­vi­sion by answer­ing an employer’s ques­tions in con­nec­tion with a sex­u­al harass­ment inves­ti­ga­tion start­ed by com­pa­ny rumors about a male super­vi­sor. Jus­tice Souter wrote the major­i­ty opin­ion, joined by Roberts, Stevens, Scalia, Kennedy, Gins­burg, and Brey­er. Jus­tice Ali­to wrote an opin­ion, con­cur­ring in the judg­ment, joined by Jus­tice Thomas.

Ms. Craw­ford Responds to an Inves­ti­ga­tion into Sex­u­al Harass­ment

USSupremeCourt Here is what hap­pened: Rumors start­ed cir­cu­lat­ing about sex­u­al­ly inap­pro­pri­ate behav­ior by a male super­vi­sor, Gene Hugh­es, at “Met­ro­pol­i­tan Gov­ern­ment of Nashville and David­son Coun­ty” (“Metro”). A human resources employ­ee start­ed inves­ti­gat­ing, and asked Vicky Craw­ford whether she had seen any inap­pro­pri­ate behav­ior by Mr. Hugh­es. Craw­ford respond­ed yes, and described sev­er­al instances of sex­u­al­ly inap­pro­pri­ate behav­ior. For exam­ple, Ms. Craw­ford had asked Mr. Hugh­es “what’s up”, and he respond­ed by grab­bing his crotch and say­ing “you know what’s up”. On anoth­er occa­sion, Mr. Hugh­es grabbed Ms. Crawford’s head and pulled it toward his crotch. The human resources employ­ee talked to two oth­er employ­ees who sim­i­lar­ly report­ed sex­u­al­ly harass­ing behav­ior from Mr. Hugh­es.

Although all 3 of those employ­ees report­ed, in response to ques­tions by Metro’s human resources inves­ti­ga­tor, sex­u­al­ly offen­sive behav­ior by Mr. Hugh­es, none of them ini­ti­at­ed any sex­u­al harass­ment com­plaint them­selves.

As a result of its inves­ti­ga­tion, Metro took no action against Mr. Hugh­es, the harass­er. On the oth­er hand, Metro fired Ms. Craw­ford and the oth­er two employ­ees who answered the HR employee’s questions–all 3 were fired short­ly after the inves­ti­ga­tion into Mr. Hugh­es was con­clud­ed. Ms. Craw­ford had been employed at Metro for 30 years.

Case Dis­missed: Ms. Craw­ford Didn’t “Oppose” Sex­u­al Harass­ment

Ms. Craw­ford then filed a charge of dis­crim­i­na­tion with the Equal Employ­ment Oppor­tu­ni­ty Com­mis­sion, and then filed suit in fed­er­al court in Ten­nessee, claim­ing she had been fired in retal­i­a­tion for her report­ing of Mr. Hugh­es’ sex­u­al harass­ment.

The Tri­al Court dis­missed her law­suit, and the US Court of Appeals for the Sixth Cir­cuit affirmed the tri­al court’s deci­sion. The Sixth Cir­cuit agreed that the law­suit should be dis­missed because Ms. Craw­ford did not ini­ti­ate her own sex­u­al harass­ment com­plaint, but instead sim­ply respond­ed to ques­tions ini­ti­at­ed by Metro in Metro’s inves­ti­ga­tion into the rumors about Mr. Hugh­es.

Supreme Court Rein­states Ms. Crawford’s Case, Defin­ing “Oppo­si­tion”

The US Supreme Court con­clud­ed that Mr. Craw­ford sat­is­fied the retal­i­a­tion pro­vi­sion of Title VII and rein­stat­ed her case. This is why.

Title VII’s retal­i­a­tion pro­vi­sion, 42 U.S.C. § 2000e-3(a), makes it “an unlaw­ful employ­ment prac­tice for an employ­er to dis­crim­i­nate against” an employ­ee because:

  • the employ­ee has “opposed any prac­tice made an unlaw­ful employ­ment prac­tice ” by Title VII (this is called the “oppo­si­tion clause”), or
  • the employ­ee has “made a charge, tes­ti­fied, assist­ed, or par­tic­i­pat­ed” in any “inves­ti­ga­tion, pro­ceed­ing, or hear­ing” under Title VII (this is called the “par­tic­i­pa­tion clause”).

In address­ing the “oppo­si­tion clause”: The Sixth Cir­cuit con­clud­ed Ms. Craw­ford didn’t “oppose” any dis­crim­i­na­to­ry prac­tice because she didn’t file any com­plaint her­self, and because “oppo­si­tion” requires “active, con­sis­tent” oppo­si­tion activ­i­ties. Mere­ly respond­ing to the HR employee’s ques­tions, accord­ing to the Sixth Cir­cuit, was not “oppo­si­tion”, so the employ­er was free to take adverse or retal­ia­to­ry action against Ms. Craw­ford. The US Supreme Court reject­ed this rea­son­ing, as I will dis­cuss below.

The Sixth Cir­cuit also addressed the “par­tic­i­pa­tion clause” and con­clud­ed Ms. Craw­ford had no pro­tec­tion against retal­i­a­tion because she had not “par­tic­i­pat­ed” in any com­plaint pro­ceed­ing under Title VII. The US Supreme Court did not address this rul­ing.

The US Supreme Court reject­ed the Sixth Cir­cuit’s rea­son­ing on the “oppo­si­tion clause” and rein­stat­ed Ms. Crawford’s case.  The US Supreme Court said the word “oppose” in Title VII should be giv­en its “ordi­nary mean­ing”, in part based on a dic­tio­nary def­i­n­i­tion, to “resist or antag­o­nize”, or to “con­tend against; to con­front; resist; with­stand”.

The US Supreme Court eas­i­ly found that Ms. Crawford’s respons­es to the HR employee’s ques­tions con­sti­tut­ed “oppo­si­tion” to Mr. Hugh­es’ sex­u­al­ly inap­pro­pri­ate behav­ior. There was “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 Title VII requires a “freak­ish rule” (“ouch!!” says the Sixth Cir­cuit) 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”.

Because the US Supreme Court found Ms. Crawford’s case should be rein­stat­ed because she sat­is­fied the “oppo­si­tion clause,” the US Supreme Court did not address the ques­tion of whether her state­ments sat­is­fied the “par­tic­i­pa­tion clause”.

Jus­tices Ali­to and Thomas, in their opin­ion con­cur­ring in the result, agreed with the “pri­ma­ry” ratio­nale in Jus­tice Souter’s major­i­ty opin­ion, but were con­cerned that some of the lan­guage in the major­i­ty opin­ion (ref­er­enc­ing part of a dic­tio­nary def­i­n­i­tion) could pro­tect an employ­ee who “silent­ly” opposed dis­crim­i­na­to­ry behav­ior. They thought there would have to be some pub­lic man­i­fes­ta­tion of the oppo­si­tion, and they thought Ms. Craw­ford did so.

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Drew M. Capuder

Publisher of Drew Capuder's Employment Law Blog. Lawyer with more than 29 years experience, focusing on employment law, commercial litigation, and mediation. Extensive trial and appellate experience in state and federal courts. Call Drew at 304-333-5261
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