Supreme Court Clarifies and Expands Employee Retaliation Protection

February 13, 2009

The Supreme Court’s decision on January 26, 2009 in Crawford v. Metropolitan Government of Nashville is a logical interpretation of both the language of Title VII and the existing case law with respect to retaliation.

In Crawford, the Supreme Court reversed a decision of the United States Court of Appeals for the Sixth Circuit that Ms. Crawford had not been the victim of retaliation. In doing so, the Supreme Court rejected the Sixth Circuit’s conclusion that Ms. Crawford had not engaged in opposition activity, holding that “opposition” did not require “active, consistent” activities. Rather, the Court held that:

  • Merely answering questions about alleged unlawful discrimination during an internal company investigation is sufficient to satisfy the “opposition” criteria of a retaliation claim; and
  • “Opposition” is deemed to include participation by employees in an internal company investigation, even if the employee did not initiate the investigation or participate in a “formal investigation, proceeding, or hearing. . .” pursuant to an actual charge of discrimination being filed under Title VII.

Justice Alito’s concurrence raised, but did not answer, the question of whether “opposition” activity can occur if the employee’s concern is not communicated to the employer.

The Opinion is just as important for what the Court did not rule.

The Supreme Court avoided the issue of whether Ms. Crawford’s activities were protected by the “participation” clause. “Participation” has traditionally been interpreted as having a higher standard that has to be met by the employee (i.e., a “reasonable belief” that the activities being opposed violate Title VII). This higher standard frequently provides the basis for an employer to successfully pursue summary judgment in a retaliation case, and the Supreme Court’s opinion kept this aspect of the defense of a retaliation case intact.

For advice or assistance in defending employee retaliation claims, please contact any member of the McGuireWoods Labor & Employment or Employee Benefits teams.