New England Biz Law Update
The recent U.S. Supreme Court decision permitting a worker who was fired after answering questions during an internal sex harassment inquiry to pursue a Title VII claim has the defense and plaintiffs’ bars divided over its impact.
While some employment attorneys say the ruling will protect workers from being penalized for speaking out, others say it could hurt employers’ efforts to stop workplace
bias and harassment by making them hesitant to question employees.
“Employers won’t do very broad [harassment] investigations if they fear that an adverse employment action against someone later will lead to a lawsuit,” said Louis P. Britt, a lawyer in Memphis, Tenn., who represents employers in labor and employment matters.
But Charles P. Yezbak, a Nashville, Tenn., solo who represents employees in wage and hour, discrimination and contract actions, said the ruling is a matter of common sense.
“I think most people would assume that if you are going to speak out against discrimination … you would be ‘opposing’ an unlawful discriminatory practice under Title VII,” Yezbak said. “It would be absolutely stupid if you were protected in going to your boss, but not protected if your boss asked you a question.”
County employee
The plaintiff in Crawford v. Metropolitan Government of Nashville and Davidson County
was Vickie Crawford, a 30-year county employee. She was interviewed as part of an internal investigation into sexual harassment allegations made by another worker. In her interview, Crawford described incidents of harassment by a director against her and other employees. The director was ultimately reprimanded but not terminated.
Crawford was later placed on administrative leave and then fired over allegations of embezzlement.
She filed suit under Title VII, claiming she was terminated in retaliation for participating in the harassment inquiry.
A federal District Court granted summary judgment for the county. The 6th Circuit affirmed, ruling that Crawford did not “participate” in an “investigation, proceeding or hearing” under Title VII because the internal inquiry did not involve an EEOC charge. Further, it held that she had not “opposed” an unlawful employment practice because she did not make a complaint, but merely answered questions.
But in reversing the 6th Circuit, the Supreme Court concluded that employee “opposition” to discrimination can take many forms, including answering questions.
“Countless people were known to ‘oppose’ slavery before Emancipation, or are said to ‘oppose’ capital punishment today, without writing public letters, taking to the streets, or resisting the government,” Justice David Souter wrote for a unanimous court.
“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,” Souter continued, “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.”
The case is the latest in a string of recent decisions in which the court has broadened retaliation protections. First, in 2006 the justices held in Burlington Northern and Santa Fe Railway Co. v. White that a retaliation claim could be based on any “actions that would have been materially adverse to a reasonable employee or job applicant.”
Last year, in Gomez-Perez v. Potter, the court held 6-3 that federal employees who complain of age discrimination have the right to bring a retaliation claim under the Age Discrimination in Employment Act, even though there is no explicit language in the statute permitting such a claim.
And in a ruling handed down the same day, the justices ruled in CBOCS West v. Humphries that an employee who lost his job after complaining about the racially discriminatory treatment of another employee could bring a claim under 42 U.S.C. §1981.
David L. Hudson Jr., a Nashville attorney and author who frequently writes on free speech employment-discrimination issues, said he wasn’t surprised by the latest decision, given the court’s past retaliation cases.
“I was a tad surprised that it was unanimous,” Hudson said. “But it seemed clear to me the way the court would rule. The 6th Circuit opinion would create, as Souter said, a ‘freakish’ rule.”
More litigation
Yezbak disputed the notion that the decision would lead to more litigation.
“This idea that lawyers are sitting with plaintiffs just waiting to jump through this ‘floodgate of litigation’ is a myth,” he said. “Plus, what is wrong with litigation if someone is violating the law? They should be subject to litigation. But is there going to be this mass market of lawyers out there filing retaliation cases? I don’t think so.”
However, Britt expressed concern that the ruling expands the interpretation of “opposition” so broadly that it covers statements employers would not see as genuine resistance to workplace discrimination.
“It clearly opens the door to include the types of statements that the employer would not necessarily view as ‘opposition,’” Britt said “And then down the road in litigation, the employee can say: ‘Well, I really meant that statement to be opposition to what I saw to be an unlawful practice.’”
He said the result could be that employers will conduct much more narrowly focused investigations of workplace bias in an effort to avoid exposure to liability later. But if employees only question a limited number of employees, it could become harder for them to root out bias and harassment, Britt said.
“What might happen is, unfortunately, employers might not get all the information that they need,” Britt said. “They may miss people who have actual knowledge of discrimination, or miss people who have a different view of what occurred.”
