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Bar News - April 18, 2008

Supreme Court Set to Decide Range of Anti-Retaliation Protection


Leonard D. Zamansky

Stephen D.
On January 18, 2008, the Supreme Court agreed to review a lower court decision that limits the range of employees eligible for anti-retaliation protection under Title VII of the Civil Rights Act of 1964. In this decision,
Crawford v. Metropolitan Government of Nashville, the Sixth Circuit Court of Appeals ruled that Title VII does not protect an employee who voluntarily reported sexually harassing behavior by her supervisor during her employer’s internal investigation into the supervisor’s conduct.

The facts of the case are relatively straightforward. The employee, Vicky Crawford, worked for the city of Nashville for thirty years. The events leading to her lawsuit began in the fall of 2001, when Dr. Gene Hughes was hired to be the employee relations director for the Metropolitan School District, a job which ironically required him to investigate claims of workplace harassment made by employees.

Less than a year later, in May 2002, the city’s legal department began an internal investigation into reports of sexually offensive conduct by Hughes. As a part of the investigation, an assistant human resources manager began interviewing employees, including Crawford, who worked alongside Hughes in the administrative offices.

When Crawford was interviewed as a part of the investigation, she shared with investigators lurid details of harassing statements and gestures that Hughes allegedly directed at her, as well as inappropriate physical contact initiated by Hughes. Though the internal investigation concluded that Dr. Hughes had engaged in "inappropriate and unprofessional" behavior, it did not fully substantiate Crawford’s allegations, and the city took no disciplinary action against Dr. Hughes.

In January 2003, Crawford was terminated on charges of embezzlement and drug use, which she denied. Crawford sued under Title VII, claiming that each of the three employees who made claims of inappropriate sexual conduct by Hughes were investigated and discharged soon thereafter. The trial court disposed of her suit on the City’s motion for summary judgment.

In affirming the trial court, the Sixth Circuit held that Crawford’s actions were not protected under either the "opposition" or "participation" clauses of Title VII. Even though the participation clause prohibits retaliation against employees who participate in a Title VII investigation, the Sixth Circuit held that this provision requires an investigation by the Equal Employment Opportunity Commission (EEOC), or at least the initiation of EEOC charges. Regarding the opposition clause, which prohibits retaliation against employees who oppose acts of harassment or discrimination in the workplace, the Sixth Circuit held that this provision required "active," "consistent," and "overt" opposition to trigger anti-retaliation protection. As Crawford spoke out against Hughes’ conduct only after being asked to appear for an interview, the appeals court held that she had not displayed the type of active and consistent opposition required to trigger Title VII protection.

The economics of the workplace were an explicit consideration for the Sixth Circuit in Crawford. "The impact of Title VII on an employer can be onerous," the court wrote, stating that expanding Title VII liability to employers who proactively initiate an internal investigation would discourage the practice. Yet this position has been criticized. The U.S. Solicitor General, the federal government’s chief advocate before the Supreme Court, argued in an amicus brief that because leaving employees unprotected in internal investigations would mean fewer employees willing to participate, the effectiveness of such investigations would be diminished. This position comes from a Bush Administration Department of Justice not known for championing workers’ rights.

Now that the Supreme Court has agreed to hear Crawford’s case, employers in New Hampshire, and across the country, have a definite stake in the outcome. Undertaking a proactive internal investigation is one of the smartest steps an employer can take upon learning of potential sexual harassment or other discriminatory behavior. In fact, in the late 1990s, the Supreme Court carved-out new legal protections from Title VII liability for employers who react to a supervisor’s sexual harassment by taking reasonable steps to promptly correct the harassment and prevent future instances of the behavior. An EEOC compliance manual for employers likewise stresses the importance of a "prompt, thorough, and impartial investigation" of supervisor sexual harassment.

As long as the Sixth Circuit’s Crawford decision stands, employees will face legal uncertainty when asked for information as part of their employers’ harassment or discrimination investigations. This will make it harder for employers to react quickly in remedying acts of discrimination, diminishing the utility of proactive investigations, which should serve as the preferred first step for all parties involved.

1. 42 U.S.C. § 2000e-3(a) states "[i]t shall be an unlawful employment practice for an employer to discriminate against any … employee[] … because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under" Title VII. (Emphasis added).

Leonard D. Zamansky is an attorney at Nelson, Kinder, Mosseau & Saturley, PC in Manchester and is a member in the firm’s Employment Practice Group. Stephen D. Coppolo is also an attorney at Nelson, Kinder. He is a member in the firm’s Employment Practice Group and the Medical Services Group.

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