An interesting Title VII retaliation case is now before the Supreme Court on a cert. petition, to be considered at the Court's conference on January 18. Crawford v. Metropolitan Government of Nashville and Davidson County, Tenn. asks the Court to decide whether Title VII’s protections against retaliation should extend to employees who participated in an internal investigation of sexual harassment, prior to the filing of any EEOC complaints.
Interestingly, the Solicitor General is taking the employee's side, and urging the Court to accept cert.
The facts are well laid out in the U.S.'s amicus brief, available here. In 2002, Defendant began an internal investigation after the legal department learned of several complaints of inappropriate behavior by its new employee relations director, Dr. Gene Hughes. During its internal investigation, Defendant interviewed Ms. Crawford, a thirty year employee, who recounted numerous instances of inappropriate behavior by Dr. Hughes including sexual comments and sexual touching. Shortly after this conversation Ms. Crawford was terminated.
In an unpublished decision the 6th Circuit held that (a) because the company approached Crawford and not the other way around, it did not satisfy the “opposition” requirement of Title VII and (b) because the investigation was not conducted pursuant to an EEOC charge, Crawford did not satisfy the “participation” requirement of Title VII.
There is ample precedent to support the Supreme Court in granting cert and reversing the 6th Circuit ruling. For example, courts have stated that the “opposition” requirement is satisfied even where complaints are made informally regardless of whether a complaint was actually filed. (See e.g. Kotcher v. Rosa & Sullivan Appliance Ctr., Inc., (2d Cir. 1992) 957 F.2d 59, 65; Rollins v. State of Fla. Dep’t of Law Enforcement, (11th Cir. 1989) 868 F.2d 397, 400.) Additionally, as the amicus curiae brief argues, Title VII’s objective is to prevent harm, and a rule which limits “participation” as the 6th Circuit does would leave a gap in Title VII’s protection. The brief also notes that employer internal investigation programs should provide protection to employees who participate the investigation. (See e.g. Faragher v. City of Boca Raton, (1998) 524 U.S. 775, 807; Kolstad v. American Dental Ass’n., (1999) 527 U.S. 526, 545-546.)
There seems little doubt that the outcome in California would favor the plaintiff here, as this is an area where FEHA's protections are broader than Title VII's. FEHA makes it unlawful
“[f]or any employer. . . or person to . . . discriminate against any person because the person opposed any practices forbidden under this part or because the person filed a complaint, testified, or assisted in any proceeding under this part.”
(California Government Code Section, 12940(h)).
California courts hold that the provisions of FEHA are liberally construed to provide employees broad protection against employment discrimination. (Yanowitz v. L’Oreal (2005) 36 Cal.4th 1028, 1054). Therefore, FEHA retaliation claims in California are not necessarily bound by the outcome of this Supreme Court case.
Discussion of this case may also be found at SCOTUSblog.
--- Michael Sachs
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