Alaska Employment Law

Introduction

The United States Supreme Court issued a new opinion Monday (January 26, 2009) in Crawford v. Metropolitan Government of Nashville in which the Court issued new guidance on Title VII retaliation claims. This summary briefly reviews the opinion and its significance. 

The Case

Crawford filed a Title VII suit alleging that she had been discharged because she cooperated in her employer’s internal investigation of sexual harassment complaints made against another employee. Title VII prohibits retaliating against an employee who opposes unlawful discrimination or who participates in a proceeding under Title VII to address unlawful discrimination claims (the “opposition” and “participation” clauses). The district court concluded that Crawford did not oppose unlawful discrimination because she merely cooperated in an internal investigation. From the district court’s view, Crawford did nothing more than answer questions when asked. The district court also concluded that Crawford did not participate in a proceeding to eradicate unlawful discrimination because she was only questioned as part of an employer’s internal investigation. There was no actual EEOC or state agency action pending, and no lawsuit had been filed. Crawford appealed. The Sixth Circuit affirmed.

The Opinion

In an opinion authored by Justice Souter and joined by six Justices, the Court reversed. The Court determined that Crawford’s activity fell within the ordinary dictionary meaning of “oppose” and therefore that her activity was protected by the opposition clause of the anti-retaliation provision. Justice Souter observed, “[i]f it were clear law that an employee who reported discrimination in answering an employer’s questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses against themselves or against others.”

Justice Alito concurred, joined by Justice Thomas. Justice Alito agreed that the opposition clause protected Crawford’s activity and further agreed that an employee who answers questions in response to an employer’s internal investigation is protected.

However, Justice Alito wrote separately to clarify his view that the opposition clause should not extend further than that. Thus, if an employer indirectly heard that an employee made statements that somehow related to a Title VII allegation, such statements made outside the context of an actual proceeding or an actual investigation would not be protected. Justice Alito was concerned that the logical reach of the Court’s opinion may extend to include such indirect communications, and that this could subject employers to far-ranging retaliation claims that were never envisioned when Title VII was enacted.

Significance

In my annual Term preview, I predicted:

In Crawford, I believe the Court will reverse. If I may be allowed an editorial comment, I should perhaps say that I hope the Court reverses. There has been a clear trend in recent years to recognize implied retaliation claims under remedial statutory schemes that do not include express retaliation provisions. In 2005 the Court recognized an implied retaliation claim under Title IX in Jackson v. Birmingham Board of Education. Last Term the Court recognized implied retaliation claims in Gomez-Perez (an ADEA case) and Humphries (a § 1981 case). It would be ironic if the Court read Title VII’s express retaliation provision in such a narrow manner as was done by the lower courts. I think the only real question will be the specific grounds upon which the Court relies to reverse. The most direct approach would be to hold that Crawford’s actions fell within the protection of the “opposition” clause. It is possible, however, that the Court could imply an additional retaliation prohibition beyond the express provision already covered by Title VII.

I do not believe that the result here would have surprised any employer or lawyer in Alaska, and it would be difficult to conceive of any Ninth Circuit panel that would have adopted the same reasoning employed by the Sixth Circuit. I believe what we can say is that this case supplies further evidence of a growing trend by which the Court has strengthened retaliation-based claims in recent years. Employers should be scrupulously fair in form and function when investigating alleged misconduct, and should be careful to insulate decisions from any perceived retaliatory motives.