Crawford v. Nashville
Bill Long 9/25/08
Docket No. 06-1595; Oral Arg. October 8, 2008
Here is one decision, friends, that must be reversed. In fact, it has reversal so clearly written on it that I wouldn't be surprised if the Court reverses the Sixth Circuit 9-0. In this employment law case, the question presented is whether the anti-retaliation clause of sec. 704(a) of Title VII of the 1964 Civil Rights Act protects a worker from being dismissed because she cooperated with her employer's internal investigation of sexual harassment. Both the district court and the Sixth Circuit said that it didn't; i.e., that Ms. Crawford could be terminated for testifying, during the course of an internal investigation, about a fellow-employee's sexual harassment of her with the anti-retaliation clause of Title VII offering her no protection. Well, let's get to the facts and the law of the case, so you can see this fairly straightforward case in its full glory.
Some Relevant Facts
In 2002 the Metropolitan Government of Nashville (TN) and Davidson Couty ("Metro") conducted a sexual harassment investigation. Why? Because an attorney in the Metro Legal Department learned that several female employees had alleged sexual harassment by the employee relations director for the Metro School District. The investigator, Ms. Veronica Frazier, assistant director for human resources, contacted staff who worked with the accused in the Metro administrative offices. In the course of these interviews, three female employees, including Ms. Crawford, described serious acts of sexual harassment by Hughes (grabbing his crotch in her presence, making lewd comments to her, etc.).
Crawford also told the investigators that she was afraid that if she complained against the employee relations director, she would lose her job. Indeed, within a few months after telling her side of the story to investigators, Crawford, as well as the two other women, were fired. The alleged perpetrator of these acts was given the slightest slap on the wrist.
The Lawsuit and Cases Below
Crawford claimed that the following section of the 1964 Civil Rights Act protected her. Called the "anti-retaliation provision," it provides:
"It shall be an unlawful employment practice for an employer to discriminate against any of his employees … because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter."
Courts that have construed this section have noted that it contains two clauses: (1) the "opposition" clause and (2) the "participation" clause. Both the district court and Sixth Circuit concluded that the statute only protects someone who has actually brought a charge of sexual harassment against the employer; it doesn't apply to third parties who are caught up in the investigatory mechanisms of the company.
The court of appeals, for example, held that:
"Crawford's actions do not constitute opposition under the meaning of the opposition clause. … The general idea is that Title VII “demands active, consisting ‘opposing’ activities to warrant … protection against retaliation.” Bell v. Safety Grooving and Grinding, LP, 107 F. App'x 607, 610 (6th Cir. 2004). Crawford's actions consisted of cooperating with Metro's investigation..."
In other words, the "opposition" clause didn't apply to this case because she was a cooperator rather than an "opposer." But how about the second clause, the "participation" clause? The court continued:
"We have held that “Title VII protects an employee's participation in an employer's internal investigation into allegations of unlawful discrimination where that investigation occurs pursuant to a pending EEOC charge.” Abbot [v. Crown Motor Co., Inc.], 348 F.3d [537,] 543 [6th Cir. 2003)]. In Crawford's case, however, no EEOC charge had been filed at the time of the investigation or prior to her firing; the investigation was internal and was prompted by an informal internal statement."
How the Court Will Decide
It is rather amazing to me that a court of law in 2008/2007 could make such a decision. Metro's action seems to be a clear violation of the "participation" clause. Indeed, in the Compliance Manual (sec. 915.003) issued by the Equal Employment Opportunity Commission, the EEOC, interpreting the statute says as follows:
"Protected activity … includes testifying or presenting evidence as part of an internal investigation pertaining to an alleged EEO violation. … Because encouraging employers to discover and prevent discriminatory practices in the workplace is a primary objective of Title VII, an employee who assists his/her employer in this endeavor is, by definition, opposing practices made unlawful by Title VII."
The EEOC was the agency headed by Justice Clarence Thomas before he was named to the Court under the first Bush Presidency.
It would seem that this would be one of the "easy" cases for the Court. The only "hitch," as I see it, is the reluctance of the Court to expand remedies for plaintiffs in employment law contexts. But this is one area where no Justice, in the fishbowl of Washington DC, will side with his or her Nashville brethren..