Monday, January 26, 2009

Opposition to Discrimination Includes Statements Made at Internal Investigation

SupctThe Supreme Court unanimously (7 joining the principal opinion, and Alito and Thomas concurring) reversed the Sixth Circuit today in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee. We blogged about Crawford here, here, and here, and the Scotuswiki page is here. The issue in Crawford was the extent to which retaliation protections under Title VII extended into an employer's internal investigation. The plaintiff in Crawford told the employer about sexually harassing conduct that she encountered from a supervisor who was being investigated based on another employee's claim of harassment.

The Court found that the plaintiff's conduct was protected under Title VII's "opposition clause," which prohibits an employer from retaliating against an employee who opposes any practice made unlawful by Title VII. Even though the plaintiff didn't initiate her report--it was in response to questions--she nonetheless opposed the discrimination the supervisor engaged in (in the dictionary sense of "oppose") by disapproving of it. Policy reasons related to the sexual harassment defense buttressed this plain language interpretation:

Employers are thus subject to a strong inducement to ferret out and put a stop to any discriminatory activity in their operations as a way to break the circuit of imputed liability . . .  Brief for Petitioner . . . (citing studies demonstrating that Ellerth and Faragher have prompted many employers to adopt or strengthen procedures for investigating, preventing, and correcting discriminatory conduct). The possibility that an employer might someday want to fire someone who might charge discrimination traceable to an internal investigation does not strike us as likely to diminish the attraction of an Ellerth-Faragher affirmative defense.

That aside, we find it hard to see why the Sixth Circuit’s rule would not itself largely undermine the Ellerth-Faragher scheme, along with the statute’s “‘primary objective’” of “avoid[ing] harm” to employees. . . . . If it were clear law that an employee who reported discrimination in answering an employer’s questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses against themselves or against others.This is no imaginary horrible given the documented indications that “[f]ear of retaliation is the leading reason why people stay silent instead of voicing their concerns about bias and discrimination.” . . . The appeals court’s rule would thus create a real dilemma for any knowledgeable employee in a hostile work environment if the boss took steps to assure a defense under our cases. If the employee reported discrimination in response to the enquiries, the employer might well be free to penalize her for speaking up. But if she kept quiet about the discrimination and later filed a Title VII claim, the employer might well escape liability, arguing that it “exercised reasonable care to prevent and correct [any discrimination] promptly” but “the plaintiff employee unreasonably failed to take advantage of . . .preventive or corrective opportunities provided by the employer.” . . .Nothing in the statute’s text or our precedent supports this catch-22.

The Court declined to reach whether this conduct was also governed by the participation clause. Kudos to Deborah Brake (Pittsburgh), whose article on Retaliation was cited by the Court in this passage.

Hat tip: Dennis Walsh and Jeff Hirsch


Employment Discrimination | Permalink

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