Butler Williams & Skilling Blog

Supreme Court Reaffirms Retaliation Protection

On January 26, 2009 the Supreme Court issued a unanimous opinion reaffirming broad retaliation protections for employees who participate in internal investigations of workplace discrimination, rejecting the employer's narrow view that the retaliation law only protected those who actually asserted claims of discrimination or participated in legal proceedings.  In Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, the Court sent a strong message to employers that anyone who responds to interview questions qualifies for protection.  

In this case, three employees interviewed during an investigation of a supervisor's reported harassment and had confirmed the harassing behavior were later fired, purportedly for unrelated reasons.  The supervisor who had been investigated was not fired.  Title VII to the 1964 Civil Rights Act protects employees from retaliation for both "opposing" illegal practices and for "participating" by filing a charge of discrimination, testified, assisted or participated in an investigation, proceeding or hearing under the Act.  The two clauses are commonly referred to as the "opposition" clause and "participation" clause.  The employer argued that these employees had not initiated a complaint and therefore had not "opposed" discrimination and, likewise, had not filed a lawsuit or served as a witness to a legal or administrative proceeding - so, the employer concluded, these employees had engaged in no "protected activity" and were not entitled to the law's retaliation protection.  The Court labeled this argument as suggesting a "freakish" rule whereby an employee who reports discrimination is protected but an employee who confirms the discrimination when asked by the employer is not.   

The Court made clear that the "opposition" clause of Title VII protects not only "active, consistent" behavior, but may be used to describe someone who had taken no action at all to advance a position beyond disclosing it.  Employers who state that they have complaint or grievance procedures, but try to undermine them by terminating or otherwise retaliating against employees who use the process or respond to questions, will not be protected by the law.  The retaliation provisions of the discrimination laws are in place to assure that, whether the employer agrees with what is said by an employee regarding discrimination or harassment, or not, the employee has absolute protection of the courts to state such views, without fear of retalation.  This decision follows a series of strong statements by the Supreme Court that it will not buy into pro-employer arguments suggesting that the nation's anti-discrimination laws' retaliation protections be diluted, with resulting "freakish" outcomes.