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On Jan. 26, the U.S. Supreme Court issued its opinion in Crawford v. Metropolitan Government of Nashville and Davidson County, Tenn. The case raised some interesting questions about the scope of protected conduct. The court concluded that an employee who speaks out about discrimination by answering questions during an investigation engages in protected conduct, for which retaliation is prohibited.

In 2002, the employer (a regional government body) was following up on rumors of sexual harassment by its employee relations director. The investigator asked Vicky Crawford whether she had witnessed any inappropriate behavior, and she described a number of instances. She had not previously complained of these instances and was not doing so during this interview. She merely provided information.

Other employees reported instances of inappropriate behavior or sexual harassment as well.
The employee relations director was not disciplined, but the three employees who provided information during the investigation were terminated. In Crawford’s case her termination was explained as resulting from financial improprieties on her part; she claimed that it was retaliatory for having participated in the investigation.

At first glance this case seemed like such a straightforward allegation of retaliation that court watchers were surprised that it even raised legal issues. At its heart, however, it required consideration of the two prongs of the anti-retaliation provisions under Title VII of the Civil Rights Act of 1964. That law prohibits retaliation against an employee who has “opposed” unlawful employment practices or has “participated” in formal proceedings under the statute.
The lower courts concluded that the plaintiff was not protected by the “participation clause” because the employer’s investigation was not conducted pursuant to a pending EEOC charge. It concluded that she was not protected by the “opposition clause” because she did not claim to have instigated or initiated any complaint.

The Supreme Court concluded that the protection of the law extends to an employee who speaks out about discrimination in the course of an employer’s investigation even if it is at the employer’s behest. Title VII’s opposition clause prohibits employers from discriminating against employees who have opposed any practice made unlawful by that law. “Opposed” is not defined in the statute and thus “carries its ordinary meaning,” which includes resisting, contending against, confronting, and withstanding.

Once the court looked to a broad dictionary definition of “oppose,” the outcome was foreordained. The plaintiff’s statement was a disapproving account of sexually obnoxious behavior toward her by a fellow employee. When an employee communicates to the employer the belief that the employer has engaged in a form of discrimination, it virtually always constitutes the employee’s opposition to the activity.

Opposition goes beyond “active” behavior and can even include no activity at all to advance a position other than discuss it. So, the court pointed out, people were known to “oppose” slavery before emancipation or today “oppose” capital punishment even though they may not write public letters, protest in the streets, or take action formally resisting government activities. Opposing could even include the passive act of a supervisor who simply refused to follow an order to discriminate.

The case reached the court without a full trial; a footnote in the Supreme Court’s opinion, however, hints at what lies ahead. Some of Crawford’s responses to the employee relations director were inappropriate in their own regard. When the employee relations director carried out his misconduct, she responded with an obscene gesture and a rude retort. It is pretty clear from the opinion that the employer’s argument will not get much attention in an eventual trial “because Crawford gave no indication that his gross clowning was anything but offensive to her.”

Amusement aside, the Crawford opinion is serious stuff and points out that protections against retaliation are an important part of the protections against discrimination. Courts will enforce them to the fullest extent of the law. For employers who want to ensure that their employment practices remain compliant, this decision is a good reminder that “opposition” is not always something that is shouted from the rooftops. It can be expressed quietly, nonverbally and may even take the form of a reluctant response to an employer’s investigation.

Paula Barran, a founding partner at Barran Liebman LLP, has been practicing labor and employment law since 1980. In addition to regularly providing employer advice and solutions, she handles employment litigation in state and federal courts, labor disputes and employment arbitrations.