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Expansion of Employee Retaliation Protection

Written by: Allison Grace

Article Overview: Actions that employers should take in response to the Supreme Court's expansion of employee retaliation protection provided by Title VII.

Expansion of Employee Retaliation Protection

In January 2009, the U.S. Supreme Court expanded the scope of the protection provided by Title VII of the Civil Rights Act of 1964, which forbids retaliation by employers against employees who report workplace race or gender discrimination. The Court held that the retaliation provision of Title VII protects an employee who speaks out about unlawful discrimination when answering questions during an employer’s internal investigation. What this means for employers is that, while investigating any claims of unlawful discriminatory conduct, any additional claims revealed by employees must be investigated fully and the employer must take steps to protect those employees who answer questions during an internal investigation from retaliation.

In the case before the Supreme Court, the plaintiff, Vicky Crawford, claimed her employer, the defendant, Metropolitan Government of Nashville and Davidson County, Tennessee, terminated her employment in retaliation for her disclosure of sexually harassing behavior during an internal investigation. The employer was conducting an investigation of rumors of sexual harassment by a particular employee and Ms. Crawford was asked during that investigation if she had witnessed any inappropriate behavior. Ms. Crawford had not complained of the harassing behavior that led to the investigation, but she disclosed that she had been subjected to it when asked during the investigation. No corrective action was taken against the employee accused of the harassing behavior.

The District Court and Court of Appeals both held that Ms. Crawford was not protected by the anti-retaliation provision of Title VII because she had not instigated or initiated any complaint, but answered questions during the course of an internal investigation initiated by someone else. The Court of Appeals specifically held that the opposition clause of Title VII demanded active, consistent opposing activities to warrant protection against retaliation. Under the opposition clause, it is unlawful for an employer to discriminate against an employee because the employee has “opposed” any practice made unlawful by Title VII.

The Supreme Court took on the issue of whether the opposition clause in Title VII protects an employee who discloses unlawful discrimination, not on his or her own initiative, but in response to questions during an employer’s internal investigation. The Court concluded that Ms. Crawford’s response when questioned about witnessing an employee’s inappropriate behavior was protected by the opposition clause, as it was a disapproving account of the harassing behavior, and there is nothing in the statute that states a person who opposes a behavior when responding to someone else’s question should not be protected in the same manner as someone who opposes by initiating the conversation.

The employer made the argument to the court that employers would have less incentive to be proactive in investigating possible discrimination in the workplace if the anti-retaliation provision were expanded. However, the Court reasoned that an employer is liable for workplace discrimination under certain circumstances, unless the employer can show that it has exercised reasonable care to prevent and correct any discriminatory conduct and that the employee unreasonably failed to following the preventive or corrective opportunities provided by the employer. That liability alone, reasoned the court, should provide a strong incentive to employers to root out and put a stop to any discriminatory activity in their operations, and that this incentive should not be diminished by this ruling.

The Court cautioned on one point, stating that the opinion did not grant Title VII protection to “silent opposition” to unlawful workplace discrimination, only to situations where an employee’s opposition occurs during an internal investigation into unlawful discrimination.

What does this mean for employers?
This decision means the potential exists for an increase in the number of retaliation claims brought against employers. Employers should review their internal investigation proactices to ensure procedures are in place to investigate all claims of discriminatory conduct in the workplace and to prevent retaliation from occurring against those employees making the claims. And employers must be vigilant during investigations to identify any additional claims that may be revealed during the investigation, as any additional claims will need to be independently investigated and the employees making those claims must be protected from retaliation.

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Article Tags: answering questions, civil rights act, civil rights act of 1964, corrective action, court of appeals, davidson county tennessee, defendant, discriminatory conduct, gender discrimination, inappropriate behavior, internal investigation, metropolitan government, ms crawford, plaintiff, retaliation, sexual harassment, title vii of the civil rights act, unlawful discrimination, vicky, what this means



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