High Court Protects Harassment Witness From Retaliation

By Staff Report

Jan. 26, 2009

A woman who testified in her employer’s internal investigation of a sexual harassment charge is protected against retaliation under a federal civil rights law, the Supreme Court ruled in a unanimous decision Monday, January 26.

The court reversed decisions by a district court and the 6th Circuit Court of Appeals, which held that Vicky Crawford could not sue a local government in Tennessee for dismissing her after she reported the lewd outbursts of a supervisor in a 2002 probe.

The lower courts held that only the subject of the sexual harassment is shielded from retaliation. Crawford was not the employee who brought charges against Gene Hughes, the employee relations director for the Nashville and Davidson County school system.

But Crawford, the payroll director, had run-ins with Hughes, including an incident in which he grabbed Crawford’s head and tried to pull it toward his crotch.

The school district took no action against Hughes. It fired Crawford later for alleged embezzlement. In her suit, Crawford asserted that she was dismissed for reporting Hughes’ behavior.

Supreme Court Justice David Souter, writing for his colleagues, argued that the lower courts erred in ruling that Crawford was not protected because she did not “oppose” Hughes’ harassment, as her colleague who formally filed the charge did. Rather, the courts said Crawford was just answering questions.

Souter wrote that “oppose” was undefined in the Title VII discrimination statute and therefore took on its dictionary meaning of “to resist or … to confront.”

“There is, then, no reason to doubt that a person can ‘oppose’ by responding to someone else’s question just as surely as by provoking the discussion, and nothing in the statute requires a freakish rule protecting 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,” Souter wrote.

Some business advocates warned that a ruling in favor of Crawford would crimp internal investigations because companies would be wary of retaliation suits.

Souter dismissed that reasoning. He said that if companies did not respond to harassment allegations with an internal investigation, they would be forfeiting an important defense.

But Louis Britt, a partner at Ford & Harrison in Memphis, said the ruling did leave open the question of whether informal workplace chats are protected.

“There could be a conversation with a supervisor that could provide that [retaliation] protection—even outside of an internal investigation,” Britt said.

A bigger risk is that employees would avoid probes if they feared losing their jobs, according to Souter.

“If 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,” Souter wrote.

James Burns, a partner at Reed Smith in Chicago, said the decision should not discourage employers from conducting investigations. But they might want to be more careful whom they interview, especially if it’s a poor performer who may be on the way out the door.

The ruling “suggests greater care in planning and carrying out the investigation,” Burns said. “The employer may initially start out with a smaller group of employees who are likely to know something.”

It will be up to HR departments to track internal investigations and make sure that a company avoids talking to employees who are at risk of being fired.

“Now they’re going to have to make sure they connect those dots,” Britt said.

Justice Samuel Alito Jr., in a concurring opinion with Justice Clarence Thomas, made a clarification that employers likely would find helpful. He asserted the court’s ruling in the Crawford case applied just to people who take part in an internal review. It does not extend to people who never directly voiced opposition to the alleged harassment.

“The question whether the opposition clause shields employees who do not communicate their views to their employers through purposive conduct is not before us in this case,” Alito wrote.

In sending the case back to the lower courts, Souter emphasized that the matter is not closed. The school district may still be able to prove that Crawford’s dismissal on the embezzlement charge was justified.

—Mark Schoeff Jr.

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