Here’s the first employment discrimination case of the Supreme Court term — a 9-0 victory for plaintiffs, holding that engagement in an internal investigation of harassment constitutes “opposition” for purposes of the Title VII anti-retaliation section, 42 U.S.C. § 2000e-3(a).
Crawford v. Metropolitan Government of Nashville and Davidson Cty., No. 06-1595 (U.S. S. Ct. Jan. 26, 2009): In a crisp seven-and-a-half pages, Justice Souter cuts through the thicket and holds that the term “oppose” does not necessarily require that the employee take the initiative. In a nutshell, Vicky Crawford was approached by an investigator for the city, who was looking into allegations that the Metro School District’s employee relations director (named Hughes) sexually harassed female employees. Were you ever harassed? the investigator inquired. Boy, was I ever!, responds Ms. Crawford:
“Hughes had answered her greeting, ‘Hey Dr. Hughes, what’s up?’ by grabbing his crotch and saying ‘[Y]ou know what’s up’; he had repeatedly ‘put his crotch up to [her] window’, and on one occasion he had entered her office and ‘grabbed her head and pulled it to his crotch.'”
Hughes held on to his job, but Crawford (and two colleagues who also complained) found themselves fired.
So the question presented was whether Ms. Crawford’s interview was a form of opposition to discrimination (or, alternatively, “participation” in a proceeding, which the Supreme Court did not have to reach). The district court and Sixth Circuit held that Ms. Crawford’s interview was too passive to constitute opposition, and granted summary judgment to the city.
The majority finds that the interview was a form of statutory opposition. Citing two dictionary definitions, the majority holds that oppose means something less intense than “resist”: “Although these actions entail varying expenditures of energy, ‘RESIST frequently implies more active striving than OPPOSE.’… .; see also Random House Dictionary of the English Language 1359 (2d ed. 1987) (defining ‘oppose’ as ‘to be hostile or adverse to, as in opinion’).” The Court applies this standard to the facts of the case:
“The statement Crawford says she gave to Frazier is thus covered by the opposition clause, as an ostensibly disapproving account of sexually obnoxious behavior toward her by a fellow employee, an answer she says antagonized her employer to the point of sacking her on a false pretense. Crawford’s description of the louche goings-on would certainly qualify in the minds of reasonable jurors as ‘resist[ant]’ or ‘antagoni[stic]’ to Hughes’s treatment, if for no other reason than the point argued by the Government and explained by an EEOC guideline: ‘When an employee communicates to her employer a belief that the employer has engaged in . . . a form of employment discrimination, that communication” virtually always “constitutes the employee’s opposition to the activity.'” [“louche” = “Of questionable taste or morality; decadent,” according to American Heritage — your vocabulary word of the day!]
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“‘Oppose’ goes beyond ‘active, consistent’ behavior in ordinary discourse, where we would naturally use the word to speak of someone who has taken no action at all to advance a position beyond disclosing it. Countless people were known to ‘oppose’ sla very before Emancipation, or are said to ‘oppose’ capital punishment today, without writing public letters, taking to the streets, or resisting the government. And we would call it ‘opposition’ if an employee took a stand against an employer’s discriminatory practices not by ‘instigating’ action, but by standing pat, say, by refusing to follow a supervisor’s order to fire a junior worker for discriminatory reasons.”
What’s left in the opinion is mop-up stuff. The employer complains that this decision will force employers to think twice before asking the “were you ever harassed” question. But the majority observes that employer already have plenty of incentive to carry out a serious investigation — the rule of Faragher/Ellerth, which makes the investigation part of its affirmative defense against supervisor harassment: “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.”
If anything, a ruling the other way finding that interview answers were not protected — would have eroded employee willingness to cooperate with an internal investigation: “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.”
Justice Alito, joined by Justice Thomas, writes separately concurring in the judgment. He expresses a view closer to that of the lower courts in this case, that employees — to benefit from this section — must demonstrate that they took some purposeful activity to oppose discrimination: “I write separately to emphasize my understanding that the Court’s holding does not and should not extend beyond employees who testify in internal investigations or engage in analogous purposive conduct.”
It should not be enough, in these justices’ view, to silently and privately possess a belief against discrimination or other prohibited activities under Title VII.
“An interpretation of the opposition clause that protects conduct that is not active and purposive would have important practical implications. It would open the door to retaliation claims by employees who never expressed a word of opposition to their employers. To be sure, in many cases, such employees would not be able to show that management was aware of their opposition and thus would not be able to show that their opposition caused the adverse actions at issue. But in other cases, such employees might well be able to create a genuine factual issue on the question of causation. Suppose, for example, that an employee alleges that he or she expressed opposition while informally chatting with a co-worker at the proverbial water cooler or in a workplace telephone conversation that was overheard by a co-worker. Or suppose that an employee alleges that such a conversation occurred after work at a restaurant or tavern frequented by co-workers or at a neighborhood picnic attended by a friend or relative of a supervisor.”
The concurring opinion specifically cites the rising number of retaliation charges and lawsuits as cause for concern, if not outright alarm. [Worry-warts!]
One issue not resolved by this case, and which still lingers owing to Clark County School Dist. v. Breeden, 532 U. S. 268, 273 (2001) (per curiam), is whether and how employees must manifest a reasonable belief that they are complaining about a prohibited activity under Title VII. Here, Ms. Crawford was specifically asked by the employer about harassment, and volunteered facts that few reasonable people would dispute constitute some kind of hostile work environment. But where the behavior is fuzzier, employees will continue to run into the argument that the conduct they “opposed” — though possibly offensive — did not violate Title VII at all, such as the notorious Jordan v. Alternative Resources Corp., 458 F.3d 332, 98 FEP 1400 (4th Cir. 2006) (racial comment by a co-worker — “They should put those two black monkeys in a cage with a bunch of black apes and let the apes f**k them” — not harassment). This area will require some fine-tuning in the future.