Recap on Opinion in Crawford v. Nashville County

By Kevin Russell
on Jan 26, 2009 at 1:45 pm

Today’s unanimous decision in Crawford v. Metropolitan Gov’t of Nashville and Davidson County, No. 06-1595, is another in a series of recent cases in which the Court has turned away requests to narrowly construe anti-retaliation provisions, generally by large margins. 

The case arose when an employer, investigating rumors of sexual harassment by a supervisor, asked the petitioner, Vicky Crawford, whether she’d witnessed any inappropriate behavior.  In fact she had, and she proceeded to tell the employer about a series of harassing acts by the supervisor toward herself.  The employer did nothing to discipline the supervisor and, instead, fired Crawford and two other employees who also reported being harassed by the supervisor. Crawford filed suit under Title VII’s anti-retaliation provision, which prohibits an employer from terminating a worker because she “has opposed any practice made an unlawful employment practice by this subchapter.”

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. 

The Court unanimously concluded that the ordinary meaning of “oppose” 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.  Accepting the rule set forth in the EEOC’s Compliance Manual, the Court concluded that “When an employee communicates to her employer a belief that the employer has engaged in . . . a form of employment discrimination, that communication virtually always constitutes the employee’s opposition to the activity.”  The Court held open the possibility of “eccentric cases” in which the employee makes clear his approval of the conduct in conveying the information (for example, describing a racist joke as hilarious probably wouldn’t count as opposing the joke-telling). 

The Court found that a contrary rule that required the worker to engage in “active, consistent” behavior in order to engage in protected opposition would be inconsistent with common usage – the Court noted, for example, that one can “oppose capital punishment” without doing anything active to end it – and that the contrary understanding would produce 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.”

Justices Alito and Thomas concurred, joining the majority opinion, but writing separately to warn against reading that opinion too broadly.  They were particularly concerned that the Court’s opinion could be read to suggest that the statute protects merely opposing a practice in principle (like opposing capital punishment) without taking any action at all to express that opposition.  In their view, covered opposition must be “active and purposive.”

It is interesting that Justice Souter’s opinion neither makes that point itself – which presumably would have eliminated the need for the concurrence – nor addresses why the concurring Justices’ concerns are misplaced.  (And, for that matter, it is a little curious that none of the other Justices chose to join the concurrence).  Could it be that some members of the Court would be willing to hold that unspoken opposition could be a basis for a claim?  That would make this a very broad protection indeed (and is, according to Justice Alito’s concurrence, beyond even what the plaintiff in this case advocated). 

So does this decision indicate a pro-plaintiff trend emerging on the Court?  I don’t think so.  It is useful to reflect on the fact that in a number of the recent Court victories for civil rights plaintiffs, the Bush Administration filed in support of the plaintiff (including in this case, and CBOCS v. Humphries, FedEx v. Holowecki, and Meacham v. KAPL from last Term).  This reflects, I think, that many of the recent victories (including this one) were instance of the Court was batting down outlier decisions in the circuits, rather than breaking substantial new ground in favor of workers.   Nonetheless, the decision does show once again that assertions that the Roberts Court  is irretrievably pro-employer are substantially overblown.