On Wednesday, the Court heard argument in Crawford v. Metropolitan Government of Nashville (06-1595), and while it remains to be seen whether the justices will decide only the question presented or will instead generally broaden the anti-retaliation statute, their comments and questions pointed toward a strong ruling in favor of employee protection.

Argument for petitioner Vicky S. Crawford, a former employee of the Nashville school system, was divided between her counsel, University of Washington law professor Eric Schnapper, and Lisa Blatt, an Assistant to the Solicitor General who argued on behalf of the United States as amicus curiae. Petitioner’s argument revolved around two points: whether her conduct "” cooperating with an internal sexual harassment investigation against a superior "” constituted “opposition” protected by the first clause of Section 704(a) of Title VII; and whether the investigation in this situation can be defined as a Title VII investigation protected by the participation clause. Of the three provisions of the opposition clause, Crawford’s claim limits itself to the question that her conduct was in the nature of opposition.

Represented by Assistant Metropolitan Attorney for Nashville, Francis H. Young, the respondent Metropolitan Government of Nashville and Davidson County contends that cooperating with a sexual harassment investigation should not be protected by either the opposition or the protection clause. The Metropolitan Government’s view is that the active definition of “oppose” "” to react against a specific action "” is the only one covered under the opposition clause; however, if Crawford had later brought a sexual harassment claim, this would “retroactively imbue the initial disclosure with an opposition quality,” Young said.

Justice Stevens vigorously argued with Young that Crawford’s actions did count as opposition, emphasizing her statement “Get the hell out of my office,” which provoked laughter on the Court.

Across the board, the Court seemed to agree that such a strict standard was preposterous based on the facts of this case-in which Crawford had articulated her victimization by the individual under investigation and expressed her strong disapproval of his behavior during the investigation, but had never brought a formal claim against him. (As Blatt reiterated, Crawford would not have had a cause of action for discrimination because she had not complained to the EEOC under the required time frame.) But the justices continued to push Schnapper and Blatt to define the limits of their proposition.

In petitioner’s view, “opposition” exists when “a reasonable person would conclude from the employee’s statement or conduct that the employee disapproved of or objected to the employment practice in question.” Such opposition need not be in reference to a specific action, but could simply be wearing a button or stating an opinion related to Title VII activity.

Justice Souter questioned whether any worker who was coincidentally dismissed around the time of a sexual harassment investigation might claim retaliation based solely on her belief that “sexual harassment is bad.”  Justice Breyer asked if the EEOC’s standard "” that an employee may sufficiently believe she is opposing a Title VII illegal practice by providing information in an employer-initiated investigation of an alleged discrimination "” should be followed; when the petitioner’s counsel responded that such a definition would be “fine with us,” Justice Scalia quickly quipped, “it wouldn’t be fine with me.” Justices Breyer and Souter most frequently cited the EEOC’s manual on compliance, indicating that they may defer to the agency’s definitions of “oppose.”

Also under consideration was the distinction between the participation and opposition clauses, and whether someone who gave exculpatory or favorable evidence in an internal investigation would also be protected from retaliation.

Justice Scalia posed a hypothetical about an employee who participated in a harassment investigation but approved of this behavior, asking whether that “world class sexual harasser” would be protected under the opposition clause.  Schnapper attempted to describe how anyone giving testimony favorable to the person under investigation would be protected by the participation clause rather than the opposition clause, but Justice Ginsburg continued to push discussion back to the specifics of the case. Justice Ginsburg emphasized three times throughout the argument that it was unnecessary to rule outside the case, but did not state any opposition or skepticism about broadening the implications of the participation clause.

Through further probing by the Chief Justice, Schnapper advanced the argument that this case falls under both the participation and opposition clause, but that the provisions overlap to provide the strongest protection in those cases in which an employee opposes without participating or participates without opposing.

Justice Alito and the Chief Justice questioned whether expansion of the clauses’ protections would make either participation or opposition clauses redundant and seemed satisfied by petitioner’s argument that it would not. Opposing may be a broader protection than participating, depending on how far outside the case the Court decides to venture, the Chief Justice said.

Blatt suggested that the justices could narrow their holding by ruling just on the facts of this case "” that Crawford’s behavior was protected by the opposition clause "” but that the option to determine the scope of the participation clause also remained in defining an “investigation.”  She emphasized that the Sixth Circuit, in dismissing the case on summary judgment, had left “a gaping hole in statutory coverage” for witnesses in internal investigations.

On the broader ruling on the participation clause, petitioner contended that to qualify as an investigation (a) the employer must previously have an anti-discrimination policy in place; and (b) the individual conducting the investigation must have been specifically authorized by the employer to do so. Arguing for the Metropolitan Government, Young countered that an internal investigation does not fall under Title VII, but drew skepticism from the entire bench based on the Court’s holdings in Faragher v. Boca Raton (1998) and Burlington v. Ellerth (1998), which required an employer either to conduct an internal investigation as part of the EEOC process or face respondeat superior liability. Souter strongly questioned why it would be reasonable for the Court to construe the statute to exclude coverage of people who under Faragher and Ellerth are supposed to come forward during internal investigations.

After the Court discussed with Young the plaintiff incentives or costs in incurring retaliation lawsuits, Schnapper offered further support on rebuttal for an elastic definition of  “investigations under this title” and emphasized the importance of internal investigations to stop sexual harassment and bring justice for its victims. In the lower courts and the Supreme Court, he said, the plaintiffs have often been fired, forced out of their jobs, or simply quit before their harassment claims got to the EEOC.

Based on the justices’ line of questioning, there seems to be little doubt that they will hold that Crawford’s participation falls under the opposition clause, which would allow employees who comply with investigations but do not bring a sexual harassment claim themselves to sue if they are later fired with the belief that this compliance contributed to their termination. On a more sweeping measure that would define an internal employer investigation as a Title VII investigation, a majority ruling seems likely but is not guaranteed.

Posted in Crawford v. Metropolitan Government of Nashville, Everything Else