Employers that fire or discipline workers increasingly face retaliation claims by disgruntled employees who claim that they are protected by nondiscrimination and other federal and state whistleblower and anti-retaliation laws.

The U.S. Supreme Court’s recent decision in Crawford v. Metropolitan Gov’t of Nashville and Davidson County, No. 06-1595, highlights the need for employers to exercise constant vigilance to potential retaliation claims and the need to act to avoid retaliating, or appearing to retaliate against employees when conducting internal investigations, terminations, promotions or other workforce management activities.

A broader view

In January 2009, the Supreme Court unanimously ruled in Crawford that the anti-retaliation provisions of Title VII protect employees against retaliation for giving a “disapproving account” of unlawful behavior when responding to questions asked during the employer’s investigation of a sexual harassment discrimination, even if the employee took no further overt action to complain about, seek to remedy or stop the misconduct.

Technically, the Crawford decision specifically applied to retaliation in the context of a sexual-harassment-complaint investigation under Title VII of the Civil Rights Act of 1964.  

Still, employers should anticipate that creative plaintiffs and their legal counsel will soon ask courts to apply the Crawford holding beyond sexual harassment to reach claims brought by employees contending injury in retaliation for statements made in investigations tied to federal statutes prohibiting retaliation.  

A host of federal and state employment laws prohibit businesses from retaliating against employees for reporting possible prohibited conduct or seeking to exercise certain legally protected rights.  Because many of these statutes use the same or similar language to the anti-retaliation provisions of Title VI, businesses should anticipate that certain courts will be inclined to view the Crawford  rationale, if not its holding, as applicable to retaliation claims under certain federal statutory prohibitions. 

Accordingly, pending further guidance, most businesses interested in minimizing exposures to retaliation claims will want to design and administer investigations to avoid the impression of illegal retaliation against witnesses in sexual harassment investigations and other investigations where similar anti-retaliation provisions may apply.  

Background

Vicky Crawford sued her employer under Title VII’s anti-retaliation provision, which prohibits an employer from terminating a worker because the individual “has opposed any practice made an unlawful employment practice” under Title VII. The case arose from statements Crawford made in response to questions addressed to her during an investigation on sexual harassment rumors.  

When asked if she’d witnessed any inappropriate behavior by a supervisor, Crawford told her employer about a series of harassing acts by the supervisor toward her.  She did not, however, file a sexual harassment complaint or report her alleged sexual harassment experience to the employer.  Following the interview, the employer did not discipline the supervisor.  

The employer, however, subsequently fired Crawford and two other employees who also reported being harassed by the supervisor. As part of its defense, the employer argued that Crawford’s report during the course of the investigation did not qualify as “opposition” prohibited under Title VII.  

The Crawford decision

The question before the Supreme Court was whether simply disclosing an act of harassment in answer to a question constitutes “oppos[ing]” an unlawful practice, or whether – as the court of appeals had held – opposition within the meaning of the provisions requires something more assertive.

Applying the ordinary meaning of “oppose,” the Supreme Court unanimously found that: “When an employee communicates to her employer a belief that the employer has engaged in . . . employment discrimination, that communication virtually always constitutes the employee’s opposition to the activity.”  

Accordingly, the Supreme Court ruled that protected opposition under Title VII includes giving a “disapproving account” of unlawful behavior, even if the employee takes no further action on her own to seek to stop or remedy the conduct.

Explaining its conclusions, the Supreme Court stated that a contrary rule that would require a worker to engage in “active, consistent” behavior in order to engage in protected opposition would be inconsistent with common usage.  For example, the Court explained, one can “oppose capital punishment” without doing anything active to end it.  

The Supreme Court rejected as “freakish” an interpretation of “opposition” that would protect “an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question.”

While concurring in the unanimous opinion, Justices Alito and Thomas cautioned against reading the opinion too broadly. Covered opposition, in their view, must be “active and purposive” to qualify as protected.  Consequently, they warned that the Court’s opinion should not be read to suggest that Title VII protects merely opposing a practice in principle (like opposing capital punishment) without taking any action at all to express that opposition.

Lessons from Crawford

The Crawford decision specifically construed the anti-retaliation provisions of 42 U.S.C. §2000e–3(a), which makes it unlawful “for an employer to discriminate against any . . . employe[e]” who (1) “has opposed any practice made an unlawful employment practice by this subchapter,” or (2) “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”

This provision of Title VII and other equal employment opportunity laws, as well as the Family & Medical Leave Act and various other employment laws, commonly contain similar prohibitions against an employer or business discriminating against protected persons for opposing unlawful practices or making charges, testifying, assisting or participating in investigation of practices prohibited under the applicable employment law.  

Consequently, there exists a significant probability that courts will apply the Crawford holding to retaliation claims brought by employees for testimony or other participation in investigation in other equal employment opportunity charges under Title VII and other employment laws.

It is also possible that employees will ask the courts to extend the holding of Crawford to retaliation claims brought by employees claiming to have been retaliated against for participating in the investigation of or expressing opposition to illegal practices under a wide range of other statutes.  

Beyond the employment context, many other federal laws incorporate similar restrictions against employers discriminating against employees for opposing unlawful practices. For example, in connection with major fraud against the United States, paragraph (h) of 18 U.S.C § 1031 creates a right for individuals, who are discriminated against in terms of employment by an employer because of lawful acts done by the employee on behalf of the employee, to recover for job and seniority reinstatement, twice the amount of back pay, interest, litigation costs and reasonable attorneys fees and other special damages.

Policies in place  

Given these similarities, pending further guidance, U.S. businesses generally will want to exercise sensitivity when dealing with employees who express opposition, testify or otherwise participate in investigations or prosecutions of potential violations under Title VII and other federal laws that contain the same or similar anti-retaliation provisions.

Read from this perspective, the Crawford decision highlights the advisability for businesses not to overlook the potential significance of the statements and conduct by employees involved in any internal investigation, performance, or other activity that might later form the basis of a retaliation complaint.  

Employers generally should listen carefully when conducting investigations, employee counseling, discipline meetings and exit interviews, with an eye out for the need to investigate potential legal violations and defend against retaliation charges, or both.

Although businesses should continue to require employees to report known or suspected discrimination or other prohibited conduct in accordance with a specified formal procedure, the Crawford decision reminds employers not to overestimate the protection afforded by the establishment of formal reporting procedures.

The ruling also highlights the need for businesses to be careful to investigate and properly respond to new charges of discrimination or other potential legal or policy violations that may be uncovered in the course of an investigation, disciplinary meeting or exit interview.   

Employers should also seek to evaluate the potential implications of their dealings with employees who previously have made charges, participated in investigations, or claimed other protected rights have been violated. The Supreme Court’s ruling also reflects the value and importance of businesses appropriately documenting concerns relating to a specific employee and legitimate business challenges motivating employment actions as they arise.

Finally, companies should keep in mind the potential value of strong documentation.  When seeking to defend against claims of discrimination or retaliation, the strength of the employer’s documentation often can play a significant role in the cost and ease of defense of the claim or charge.  

Establishing a paper trail

Businesses should work to prepare and retain documentation not only of allegations, investigations and determinations on employee performance and discipline, but also on allegations of violating equal employment opportunities or other laws.  

Documentation should be prepared and retained on a systematic basis with an eye to strengthening the organization’s ability to prevent and defend against charges that the organization violated the core obligations under the applicable law, as well as to defend employment decisions involving employees who may be in a position to assert retaliation claims.

The significance of good investigation and documentation practices takes on particular importance in the current tough economic environment.  While retaliation claims have been rising for many years, the recent economic downturn is fueling an increase in the number of employees seeking to claim protection in the tightening economy based on retaliation or other employment law protections.  

Workforce dissention and changes in personnel can complicate the ability to defend these claims just as the Department of Labor and other federal regulators are turning up the enforcement heat.  As a result, appropriate investigation and documentation procedures are particularly important in the current environment.

Cynthia Marcotte Stamer can be reached at Cstamer@CTTLegal.com. 

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