Last week the U.S. Supreme Court held oral arguments in Crawford v. Metropolitan Government of Nashville and Davidson County. Scotusblog.com is a highly regarded blog that lets everyone easily keep track of Supreme Court cases. Yesterday, they published a summary of the argument which you can review here. If you don't want to take their word for it, you can read the official transcript of the oral argument from the Supreme Court's website here.
The case concerns a sexual harassment investigation in which several female employees, one of whom was the plaintiff (Ms. Crawford), were called to meet with the investigator. During this meeting, Ms. Crawford said that she and other female employees had been harassed. Six months or so later, Metro terminated Crawford on what she said were unfounded charges of embezzlement and drug use. She sued claiming her termination was in retaliation for her statements during the investigation.
As scotusblog.com's summary reflects, the Supreme Court appears to be leaning toward holding Crawford's statements to be protected under Title VII. The Sixth Circuit had rejected this reasoning saying Crawford cooperated with the investigation "by appearing for questioning at the request" of the investigator. To oppose unlawful activity, the court held, an employee needs to take some action. Crawford v. Metro. Gov't of Nashville & Davidson County, 211 Fed. Appx. 373 (6th Cir. 2006). Forgetting the fine legal distinctions at issue in the case, any employer that takes action against an employee because of what the employee said during the employer's internal investigation of a sexual harassment allegation acts on very thin ice. I've addressed that previously so enough said.
But the more important point, which might not be addressed by the Court but is nevertheless worth mentioning, is whether an employee's participation in the employer's internal sexual harassment investigation (regardless of what is said) constitutes protected activity.
Under the Title VII retaliation provision (as well as many others), an employee can oppose unlawful activity or the employee can "participate" in a proceeding or investigation into whether the employer's conduct violated Title VII. For opposition clause protected activity, what the employee says is what matters. For participation clause activity, all that matters is the fact of the participation itself.
In the Sixth Circuit's view, Metro's internal investigation was not participation clause activity because "at a minimum, an employee must have filed a charge with the EEOC or otherwise instigated proceedings under Title VII."
This is not the place to go long into the legal distinctions. If you want to see the "no win" scenario example, look at Merritt v. Dillard Paper Co., 120 F.3d 1181, 1183 (11th Cir. 1997), where the court held that the employer could not lawfully fire an employee because, during his deposition testimony in a sexual harassment lawsuit, he admitted engaging in some of the harassing conduct. The admission was costly to his employer and they fired him as a result. The employee could be fired for harassing employees, the court said, but not because he testified truthfully about harassing them.
To return to reality (subject to change by the Court), the threshold for participation clause activity is clear and easy to apply. It requires the instigation of some formal legal proceeding, such as the filing of a lawsuit or charge of discrimination. Booker v. Brown and Williamson Tobacco Co., Inc., 879 F.2d 1304, 1313 (6th Cir. 1989). Courts and Congress, however, don't often favor employers (or employees, as the street to ambiguity never runs one way) with bright line rules, and here, the government (representing the views of the EEOC) at argument favored having the participation clause protect employees who cooperate in an employer's internal investigation.
Why does it matter? In most cases it won't. In many employer investigations, employee statement are likely to fall within the "opposition" clause. But take the Dillard Paper example. Suppose, instead of being at a depositon, the harasser had been summoned to meet with the HR manager investigating the underlying harassment charge and then admitted to engaging in horrific conduct toward the vicitimized employee? If the EEOC gets its way, may the employer, at this point, fire the harasser? After all, the employer is under pretty strong legal pressure to fire the harasser (even though the cases say this not always required).
Title VII was never meant to immunize employees from the consequences of their own unlawful conduct. But if any statement, even an admission of harassing conduct, is protected if it is made during an employer's investigation, where does that put the employer who wants to rid the workplace of all individuals who might harass other employees?
With the Supreme Court leaning heavily toward reversing the Sixth Circuit on the opposition clause issue, it may leave the participation clause issue for another case. But for now, it is enough to say there is a risk. So be careful not to put yourselves in any situation where you might end up having to defend your position to the Supreme Court.
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