Analysis of Oral Argument Transcript in Crawford Retaliation Case

The Supreme Court heard oral argument in the case of Crawford v. Metropolitan Government of Nashville yesterday afternoon. Scotusblog’s Scotuswiki page on the case can be found here. Crawford had cooperated with Metro’s internal investigation into allegations of harassment of a fellow employee by a supervisor. Crawford related details of that supervisor’s sexually harassing conduct toward her (Crawford) and her reactions to it. The issue on review concerns whether firing an employee for reporting this information in an internal investigation constitutes retaliation under Title VII. Title VII prohibits retaliation against an employee who “has opposed any practice made an unlawful employment practice by this subchapter,” or who has “participated in any manner in an investigation, proceeding, or hearing under this subchapter” 42 U.S.C. 2000e-3a. Eric Schnapper (Washington) argued the case for petitioner, and split his time with the Solicitor General’s Office, which came in on the side of the employee. The analysis that follows is based on my reading of the oral argument transcript in Crawford.

1. Counsel for Crawford argued that Crawford’s conduct would be protected under either the opposition clause or the participation clause of the retaliation provision, but focused mostly on the opposition clause. Counsel defined the test for whether conduct was opposition as determined by whether a reasonable person would conclude from the employee's statement or conduct that the employee disapproved of or objected to the employment practice in question. The court pushed heavily into hypotheticals about what conduct would be sufficient to “oppose” discrimination.

2. Here’s the first clue that at least Scalia is very concerned about creating opportunities for more litigation by employees:

JUSTICE SCALIA: But that doesn't solve the problem of having too broad an entry into this thing. You get to the jury by just showing that she said "Oh, if he did that, it's terrible," and then it's up to the jury all of a sudden whether that is the reason that the employer fired this person or not. I mean, that just leaves -- lays the employer open to a lot of jury determinations that he shouldn't be subject to, it seems to me.

And Scalia was not alone:

JUSTICE SOUTER: Then what is the limit? It seems to me you've got a cause of action in effect under the statute that would be virtually unlimited. . . .

4. Poor Justice Ginsburg had to rein everybody back in:

JUSTICE GINSBURG: But why are we -- why are we spending so much time on hypotheticals that are so far from this case? This was a person who appeared at an internal proceeding, she gave testimony, very specific testimony. She wasn't saying: I'm against harassment. She said: This boss harassed me. It is about as specific as you get. So we're dealing with a particular case of somebody who was a witness in an internal investigation. Why do we have to reach the outer boundaries of this claim in this case?

5. The Justices were also very concerned that only people whose statements were on the side of the complaining employee would be protected if the Court analyzed this issue under the opposition clause alone. To which counsel for Crawford replied that the protections in the opposition and participation clauses were meant to overlap and complement each other – concentric circles of protection in Chief Justice Roberts’ terms.

6. Counsel for the Government agreed that the conduct was protected under both clauses, but urged the Court to decide the case under the opposition clause precisely because that would cover fewer people than would be covered by the participation clause. Additionally, the test proposed by the Government was whether a reasonable person would understand that the employee has objected to sexual harassment in the workplace.

7. One of the issues addressed by counsel for the Government and counsel for the Respondent was the relationship between this potential protection under the participation clause and the Farragher and Ellerth defense in sexual harassment cases. If the statute as it’s interpreted now encourages employers to prevent and remedy discrimination, particularly sexual harassment, by adopting policies, enforcing them, and investigating allegations of sexual harassment thoroughly, what will happen if we include this investigation under the participation clause? On the one hand, it might discourage employers from doing investigations at all because every person who participates will be a potential plaintiff if later discharged. If employers don’t do the investigation, they will expose themselves to liability on the sexual harassment. In other words, employers are exposed to serious liability either way. On the other hand, if employees aren’t protected in internal investigations, they won’t cooperate, and the investigation won’t be effective to actually discover and prevent or remedy discrimination. The shield remains for the employer, but the purpose of the defense, for employers to internalize the norms of the act and self-enforce, is gutted. Additionally, any kind of enforcement of the act will be undermined because employees will be deterred further from revealing discriminatory conduct to the employer, which may even chill them from asserting their rights or filing charges with the EEOC at all.

8. In addition to the participation clause argument, counsel for the Respondent argued that opposition required some kind of attempt to stop the conduct opposed. The person would need to put the employer on notice in an effort to get the conduct to stop before the conduct could be termed “opposition.” That was met with some tough questioning by the justices.

9. The discussion then turned to the litigation floodgates with a series of questions by the Justices about the costs of litigation to employers:

CHIEF JUSTICE ROBERTS: My point is simply that the incentive system is skewed because if you lose you pay not only your attorneys' fees but the complainants'. If you win, you have to incur yours. . . . I'm not saying it shouldn't be. But in terms of the pressures towards settlement, it is a very strong incentive.

JUSTICE STEVENS: Is bringing frivolous cases cost-free for the plaintiffs? There are certain costs.

MR. YOUNG: Well, Your Honor, many of these types of cases are taken on a contingent fee basis except for hard costs.

JUSTICE BREYER: It is a mix. I mean, you know, a lot of plaintiffs might be afraid to bring these cases because they'll be accused of doing all kinds of bad things. They don't want their reputations ruined. They have lawyers who take contingent fees because they have to pay for it. Oh the other hand, you have problems with your costs and you have problems dismissing people who should be dismissed. Everybody has problems in this area. That's why we have law and lawyers. They try to minimize it. This doesn't seem fruitful to me.

JUSTICE SCALIA: Isn't it true that financially it is always cost-free for the plaintiff because she has an attorney who is taking it on a contingent basis? Now, you could say it's not cost-free to the lawyer; but even that's not always true because if the lawyer has nothing else to do he may as well be doing this, you know, whatever the odds are.

MR. YOUNG: I agree with that, Your Honor.

This is very much a policy-driven case. There are some statutory interpretation issues that could drive the analysis, particularly what “opposition” means as a practice, and what “an investigation under this subchapter” includes. But really, what’s at stake are fundamental policies about enforcing Title VII, harnessing informal employer processes to do so, and the role of litigation in enforcement and its cost to businesses.

The Court may find Crawford's conduct to satisfy the opposition clause, limit the holding to these facts–where the person reports conduct that he or she experienced which would probably have violated Title VII–and not open any real floodgates. Alternatively, this could go the way of Ledbetter, protecting employers (and the courts) from litigation at the cost of reducing the enforcement of Title VII. And ultimately for me personally, the most worrisome exchange in the argument is the discussion of how costless litigation is for employees and how easy at least Justice Scalia thinks it is to get attorneys to take frivolous Title VII cases, “because if the lawyer has nothing else to do he may as well be doing this.”

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