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February 5, 2009 |
Schiff Hardin Labor and Employment Alert By M. Eleonor Ignacio and Catherine H. Thompson On January 26, 2009, in Crawford v. Metropolitan Government of Nashville & Davidson County, Tennessee, the Supreme Court held that protection under the "opposition" clause of Title VII's retaliation provision extends to employees who speak out about discrimination, not only on their own initiative but in answering questions during an employer's internal investigation. In 2002, Metropolitan Government of Nashville and Davidson County, Tennessee (Metro), began investigating rumors of sexual harassment by Metro employee relations director Gene Hughes. As part of the internal investigation, Metro human resources officer Veronica Frasier questioned Vicky Crawford, a Metro employee. Crawford did not initiate the internal investigation; however, she responded to Frasier's questions by describing several instances of sexually harassing behavior by Hughes. Although Metro took no action against Hughes, it fired Crawford. Crawford brought suit in part under the opposition clause of Title VII, which makes it unlawful to retaliate against an employee who has "opposed" a discriminatory practice. The Sixth Circuit held that Crawford's conduct was not protected by the opposition clause because Crawford had not initiated any complaint prior to the investigation. The Sixth Circuit followed the active, consistent opposition rule. Under this rule, only employees who initiated the complaint or engaged in consistent conduct against the alleged harassment "opposed" a discriminatory practice. The Supreme Court rejected the Sixth Circuit rule and held that Crawford's report of sexual harassment during an internal investigation was protected under the opposition clause of Title VII. The Court explained that "oppose" is undefined in Title VII and thus carries its ordinary meaning of resisting or contending against. There was no statutory reason to distinguish between an employee who reports discrimination on her own initiative and one who reports the same discrimination in the same words when her boss asks her a question. Furthermore, the Court was concerned that the Sixth Circuit's rule, under which an employee who reported discrimination in response to an internal investigation could be penalized without remedy, would encourage employees to remain quiet about Title VII offenses against themselves or against others. Employers should always conduct a prompt and thorough investigation of any claim of discrimination or harassment, even if the claim is initiated through rumors in the workplace. Those conducting the investigation must keep in mind that Title VII retaliation provisions not only protect victims of discrimination or harassment, but also witnesses to an investigation. Because of Crawford, an employer must make certain that it has a legitimate, non-discriminatory, and non-retaliatory reason for disciplining or terminating an employee who has recently been interviewed for an investigation involving discrimination or harassment, including documentation of such reason. Absent a legitimate reason for the adverse action, employers could face a retaliation claim under Title VII. ABOUT SCHIFF HARDIN LLP Schiff Hardin's Labor and Employment practice group represents employers and management in all aspects of the employment relationship, including discrimination claims under Title VII, the American with Disabilities Act, the Age Discrimination in Employment Act, and the Fair Labor Standards Act. The firm's employment attorneys have litigated and tried numerous cases in federal and state courts around the country. Schiff Hardin offers clients comprehensive payroll practices and policy reviews, as well as advice, counseling, and training on equal pay issues. For more information, please feel free to contact us. RECENT LABOR AND EMPLOYMENT PUBLICATIONS "Ledbetter Act Becomes Law," Labor and Employment Update (February 2, 2009) |