The Supreme Court will hear arguments in a case that poses that question today. The case is Crawford v. Metropolitan Gov’t of Nashville and Davidson County, Tenn. The Sixth Circuit’s Opinion and links to all the briefs can be found here. Paul Secunda offers some commentary here.
Vicky Crawford was an employee of the Metropolitan Government of Nashville and Davidson County (Metro) for thirty years. In 2002, Metro’s Human Resources Department began an investigation of alleged inappropriate sexual behavior by a supervisor, Gene Hughes. Investigators contacted employees who had worked with Hughes, including Crawford, to interview them.
Crawford told investigators that Hughes had sexually harassed her, such as by asking to see her breasts, grabbing his crotch, and suggesting she perform oral sex on him. Crawford also told investigators Hughes had harassed other employees. After gathering information from Crawford and other employees, Metro concluded that Hughes had engaged in”inappropriate and unprofessional behavior,”but it took no disciplinary action against him. However, within six months of Crawford’s interview, she was fired, allegedly for performance deficiencies.
Title VII makes it unlawful for an employer to retaliate against any employee”because [the employee] has opposed any practice made an unlawful employment practice by this subchapter”(the”opposition clause”),”or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter”(the”participation clause”). 42 U.S.C. § 2000e-3(a). Crawford filed a lawsuit alleging that Metro discharged her for the statements she made while cooperating with the sexual harassment investigation, in violation of both the opposition and participation clauses.
The trial court dismissed the case, and the U.S. Court of Appeals for the Sixth Circuit upheld the dismissal. The court reasoned that Crawford’s corroborating statements about Hughes did not meet the definitions of either”opposition”or”participation”under Title VII, so Metro’s decision to fire her could not be considered retaliatory. As to the opposition clause, the court found that Crawford’s cooperation in an internal investigation did not rise to the level of”opposing”discrimination. Instead, said the court, Title VII”demands active, consistent â€˜opposing’ activities to warrant . . . protection against retaliation.”Crawford v. Metropolitan Gov’t of Nashville and Davidson County, Tenn., 211 Fed. Appx. 373, 376 (6th Cir. 2006) (citation omitted). An example of such activity in this case, explained the court, would be Crawford’s filing a complaint of her own against Hughes. As to the participation clause, the court ruled that Crawford’s statements during an internal investigation of a complaint did not qualify as”participation.”Rather, it found that only statements given during an investigation of a charge of discrimination filed with the U.S. Equal Employment Opportunity Commission (EEOC) or other outside enforcement body rise to the level of”participation”protected by Title VII.
Crawford is appealing this, obviously. Gillian Thomas at Legal Momemtum notes (via e-mail, quoted with permission):
“Research tells us that fear of retaliation is a main reason that employees keep quiet even in the face of severe harassment. (Indeed, Ms. Crawford says that her supervisor asked to see her breasts, pressed his crotch against her office window, pulled her head into his lap, and responded to a casual”what’s up?”by grabbing his crotch and saying”you know what’s up.”) But don’t take the social scientists’ word for it: Ask any woman you know whether she’s ever been harassed on the job. Chances are she has, and chances are she was too afraid to rock the boat by complaining. A ruling against Ms. Crawford will send the message that unless an employee is prepared to file a formal complaint, she is better off keeping mum about discrimination. Even an employee who might feel brave enough to file her own complaint will think twice if she knows that her colleagues will be too afraid to corroborate her allegations.”
The brief filed in support of Crawford by the National Women’s Law Center is accessible here.