In late January 2009, the United States Supreme Court decided Crawford v. Metropolitan Government of Nashville and Davidson County , 129 S. Ct. 846 (2009), a case that will force employers to revisit their internal investigation policies. The plaintiff in Crawford claimed retaliation when she and two other employees were terminated after being questioned in connection with an internal sexual harassment investigation. During the questioning, they confirmed that the accused individual had engaged in inappropriate conduct. The Sixth Circuit Court of Appeals affirmed the trial court's decision to grant summary judgment to the defendants. The Supreme Court unanimously reversed.
The Supreme Court addressed the opposition clause of the anti-retaliation provisions of Title VII, to determine whether an individual questioned in an internal investigation must instigate a complaint of discrimination before she may be protected from retaliation.
The opposition clause makes it "unlawful for an employer to discriminate against any" employee "because he has opposed any" unlawful practice. The Sixth Circuit found that the opposition clause requires "active" opposing activities and ruled that Crawford had not engaged in such activities because she had not instigated the complaint or taken any action following the investigation. In discussing the ordinary meaning of the word "oppose," the Supreme Court held that a person need not be "active" and the opposition clause may describe someone whose only action is to disclose their opposition. Therefore, the Court ruled that the Sixth Circuit's interpretation of "oppose" results in 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."
Prior to the Court's decision, commentators feared that a finding in favor of the plaintiff would lead to an increase in retaliation claims and disincentivize employers from conducting internal investigations. Writing for the majority, Justice Souter found these concerns to be unconvincing because these fears underestimate employers' incentives to conduct investigations. In the wake of Burlington Industries, Inc. v. Ellerth , 524 U.S. 742 (1998), and Faragher v. Boca Raton , 524 U.S. 775 (1998), employers have a strong incentive to "ferret out and put a stop to any discriminatory activity in their operations as a way to break the circuit of imputed liability." The Court did not accept the suggestion that the possibility that an employee questioned may thereafter seek the protection of Title VII was likely to outweigh the "attraction of an Ellerth-Faragher affirmative defense" to employers.
In fact, the Court opined that ruling for the defendants would have undermined Title VII. A "prudent" employee would keep quiet when questioned in an internal investigation and yet, if she one day filed a Title VII claim, the employer could escape liability by arguing that it took reasonable care to stop and prevent discrimination and the employee failed to use these opportunities to report discrimination.
A concurring opinion written by Justice Alito and joined by Justice Thomas raised concerns regarding the broad definition of opposition that the Court adopted. Justice Alito argued that disclosure of opposition should at least be "purposive," fearing that the Court's broad interpretation could lead "to retaliation claims by employees who never expressed a word of opposition to their employers." In Justice Alito's view, these individuals could have merely discussed their opposition at the water cooler with a colleague or after work in a restaurant frequented by co-workers.
Whether or not Justice Alito's fears will materialize, the Court's decision in Crawford should give employers pause when conducting internal investigations. In particular, employers should consider whether it is necessary to the investigation to interview an employee whose performance is deficient and may be subject to discipline or termination, lest they find themselves thereafter accused of retaliation.
Kevin B. Leblang, a Partner, is head of Kramer Levin's Employment Law department and concentrates exclusively on representing management on employment law litigation and advisory matters. Robert N. Holtzman, a Partner, concentrates exclusively on representing management in employment law matters.