By Tiffanie Benfer, Esq.
Just this morning, the Court issued a decision that sets forth a broad interpretation of the anti-retaliation provision of Title VII, and concluded it applies to employees participating in an internal investigation of Title VII violations. The decision in Crawford v. Metropolitan Government of Nashville will make it easier for employees to bring retaliation claims. It serves as a caution to employers, who should be aware that they may be liable for retaliation even if a court finds that there is no merit to the underlying discrimination claim.

Justice Souter delivered the opinion, in which Roberts, Stevens, Scalia, Kennedy, Ginsburg and Breyer joined. Justice Alito wrote a concurring opinion that Thomas joined.
Plaintiff, Ms. Crawford, cooperated in her employer’s internal investigation of a sexual harassment complaint. Consequently, she was terminated for alleged embezzlement and drug use, allegations which were later found to be untrue. Ms Crawford brought suit against her employer for retaliation for reporting sexual harassment. Her employer asserted that her actions did not constitute “protected activity” because she reported the sexual harassment during an internal investigation.
The Court concluded: “There is … no reason to doubt that a person can “oppose” by responding to someone else’s question just as surely as by provoking the discussion, and 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 her boss ask a question.”
The Court recognized the obvious dilemma the appeals court’s ruling would create for any knowledgeable employee in hostile work environment.
The appeal court’s decision created a catch-22. If an employee kept quiet about discrimination in an internal investigation and later filed a Title VII claim, the employer would have a good chance of evade liability by asserting that it “exercised reasonable care to prevent and correct [any discrimination] promptly, but the plaintiff employee reasonably failed to take advantage of … preventive or corrective opportunities provided by the employer.” The Court concluded that there was nothing in the text of the statute or precedent that supported creating such loop hole for the employer to escape liability and thus a broad interpretation is necessary.