CLIENT ALERT / Supreme Court Retaliation Case Print

The Supreme Court of the United States has extended unlawful retaliation protections to employees who do not initiate or speak out about discrimination on their own, but do express opposition to conduct when answering questions posed during an employer’s internal investigation.  In Crawford v. Metropolitan Government of Nashville and Davidson County Tennessee,  555 US ___  (January 26, 2009), the United States Supreme Court reversed both the District Court and the Sixth Circuit Court of Appeals decisions, which had granted the employer’s motion for summary judgment, ostensibly because simply affirming that inappropriate sexual conduct occurred in the workplace in response to questions posed by the employer during an internal investigation is not “opposing” an unlawful employment practice.

The Court analyzed the “opposition clause” in Title VII’s Anti-Retaliation provisions, which state that it is an unlawful employment practice for an employer to discriminate against any employee “because he [sic] has opposed any practice made an unlawful employment practice by this sub-chapter”.  The Court held that “opposition” can occur “by responding to someone else’s question just as surely as by provoking the discussion,” and the Court rejected the “freakish rule protecting an employee who reports discrimination on her own initiative but not when one reports discrimination in the same words when her boss asks a question.”

Practically speaking, this decision probably clarifies the position that most employers take when they undergo an internal investigation.  If a witness who has not claimed unlawful discrimination provides information about an unlawful practice, that employee is involved in a protected activity. In the Crawford case, the alleged harasser was not terminated, but the complainant, as well as Ms. Crawford, were terminated from employment

An employee who participates in protected proceedings or opposes an unlawful practice is not immune from discipline or discharge for job-related conduct as long as the employer acts consistently with respect to similarly situated employees.  However, employers who discipline employees under these circumstances for job-related issues must provide appropriate documentation of these performance issues to defend against claims of “pretext.”

If you have any questions about this or any legal matter, please don’t hesitate to contact the attorneys at Taylor, McCormack & Frame.

 

 
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