Title VII's Antiretaliation Protections can extend to an Employee's Involvement as a Witness in an Employer's Internal Investigation
In its decision in Crawford v. Metropolitan Government of Nashville and Davidson City, the United States Supreme Court considered the scope of Title VII protections from retaliation for employees who act as witnesses in an employer's internal investigation into harassment. The Court held that an employee's involvement in the employer's internal investigation constituted opposition to unlawful employment practices when she responded to her employer's questions in a manner disapproving of accused harasser's sexually obnoxious behavior toward her. The Court's decision unfortunately does not create a bright line standard for employers defining the scope of an employee's involvement in an internal investigation which can trigger protections from retaliation. Employers should tread very carefully in this area.
Under the facts of the case, Metropolitan began an investigation into rumors of sexual harassment by its employee relations director. Crawford was asked in an interview if she observed any "inappropriate behavior" to which she recounted several incidents of sexually harassing behavior directed at her by the employee relations director. Subsequently, Metropolitan took no action against the director, but fired Crawford for embezzlement. Crawford filed a discrimination complaint claiming retaliation for her comments in the investigation.
The lower courts dismissed her retaliation claim holding that Title VII's retaliation protections “‘demand active, consistent “opposing” activities to warrant . . . protection against retaliation,’”. Crawford was not protected since she did “not claim to have instigated or initiated any complaint prior to her participation in the investigation, nor did she take any further action following the investigation and prior to her firing.”
The U.S. Supreme Court reversed holding that the antiretaliation provision’s protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation. Crawford’s statement was covered by the opposition clause, as an ostensibly disapproving account of alleged harasser's sexually obnoxious behavior toward her. The court reasoned that a person can “oppose” by responding to someone else’s questions just as surely as by provoking the discussion. 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 asked a question.
The Court also noted that employers have a strong inducement to ferret out and put a stop to discriminatory activity in their operations because “[a]n employer . . .is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with . . . authority over the employee.” The Court criticized the Circuit’s rule on the basis that it could undermine Title VII's retaliation protections because, if an employee reporting discrimination in answer to an employer’s questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses.
Disappointingly, the Court chose not to further illuminate the scope of retaliation protections.
The prevalence of e-mail and texting communications can aid an employer in its investigation of workplace misconduct; provided, the employer’s policy adequately preserves its right to access the data. However, overstepping rights to access e-mail and other electronic communication media can result in criminal prosecution under state and federal law.