Title VII prohibits employers from retaliating against employees who report workplace race or gender discrimination. The issue examined by the US Supreme Court in Crawford v. Metro Government of Nashville, was whether this protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation. The basic holding by the Supreme Court on the issue can be summed up the Court’s statement:
Nothing in the statute requires 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 asked a question.
The Court explained Title VII’s two anti-retaliation provisions:
The Title VII antiretaliation provision has two clauses, making it “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.” 42 U. S. C. §2000e–3(a). The one is known as the “opposition clause,” the other as the “participation clause,” and Crawford accused Metro of violating both.
The lower court in the Sixth Circuit in this case held that the plaintiff could not satisfy the opposition clause because she had not “instigated or initiated any complaint,” but had “merely answered questions by investigators in an already-pending internal investigation, initiated by someone else.”
The Supreme Court rejected the lower court’s rational. The Court reiterated that under the Farragher/Ellerth defense, when no tangible employment action is taken against an employee, the employer may invoke a defense to the employee’s claim if it took reasonable care to prevent/correct and discrimination, and the employee failed to take advantage of the opportunities offered by the employer to prevent or to correct the discrimination. The Court explained that the lower court’s rational, if applied here would create a catch-22 for the employee:
The appeals court’s rule would thus create a real dilemma for any knowledgeable employee in a hostile work environment if the boss took steps to assure a defense under our cases. If the employee reported discrimination in response to the inquiries, the employer might well be free to penalize her for speaking up. But if she kept quiet about the discrimination and later filed a Title VII claim, the employer might well escape liability, arguing that it “exercised reasonable care to prevent and correct [any discrimination] promptly” but “the plaintiff employee unreasonably failed to take advantage of . . .preventive or corrective opportunities provided by the employer.”
The Take-Away for Employers:
- Investigate all employee workplace complaints;
- Document the investigation well (such as who was spoken to, who conducted the investigation, and what was said);
- Take all reasonable steps to stop improper workplace conduct discovered during the investigation; and
- Ensure that no one who participates in the investigation is retaliated against for providing information during the investigation.