Last week the Supreme Court handed down a unanimous decision in favor of the plaintiff in Crawford v. Metropolitan Government of Nashville (S.Ct. 1/26/09). The Court held that an employee who 
answers a question about a fellow employee's improper conduct during an internal sexual harassment investigation is engaging in protected activity under Title VII.
Title VII of the 1964 Civil Rights Act prohibits employment discrimination, including harassment, on the basis of race or sex. It also protects employees from retaliation for opposing any unlawful discrimination or participating in an investigation of unlawful discrimination "under" Title VII. The question presented in Crawford was whether this anti-retaliation provision protects employees who participate in an internal company investigation of alleged sexual harassment.The Court decided, 9-0, that yes such protection exists.
Here is the syllabus summary of the decision:
In response to questions from an official of respondent local government(Metro) during an internal investigation into rumors of sexual harassment by the Metro School District employee relations director (Hughes), petitioner Crawford, a 30-year employee, reported that Hughes had sexually harassed her. Metro took no action against Hughes, but soon fired Crawford, alleging embezzlement. She filed suit under Title VII of the Civil Rights Act of 1964, claiming that Metro was retaliating for her report of Hughes’s behavior, in violation of 42 U. S. C. §2000e–3(a), which makes it unlawful “for an employer to discriminate against any . . . employe[e]” who (1) “has opposed any practice made an unlawful employment practice by this subchapter”(opposition clause), or (2) “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter” (participation clause). The court granted Metro summary judgment, and the Sixth Circuit affirmed, holding that the opposition clause demanded “active, consistent” opposing activities, whereas Crawford had not initiated any complaint prior to the investigation, and finding that the participation clause did not cover Metro’s internal investigation because it was not conducted pursuant to a Title VII charge pending with the Equal Employment Opportunity Commission.
Held: The anti-retaliation provision’s 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.Because “oppose” is undefined by statute, it carries its ordinary dictionary meaning of resisting or contending against. Crawford’s statement is thus covered by the opposition clause, as an ostensibly her. “Oppose” goes beyond “active, consistent” behavior in ordinary discourse, and may be used to speak of someone who has taken no action at all to advance a position beyond disclosing it. Thus, a person can “oppose” by responding to someone else’s questions just as surely as by provoking the discussion. 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. Metro unconvincingly argues for the Sixth Circuit’s active, consistent opposition rule, claiming that employers will be less likely to raise questions about possible discrimination if a retaliation charge is easy to raise when things go badly for an employee who responded to inquiries. Employers, how-ever, have a strong inducement to ferret out and put a stop to discriminatory activity in their operations because Burlington Industries, Inc. v. Ellerth, 524 U. S. 742, 765, and Faragher v. Boca Raton, 524 U. S. 775, 807, hold “[a]n employer . . . subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with . . . authority over the employee.” The Circuit’s rule could undermine the Ellerth-Faragher scheme, along with the statute’s “ ‘primary objective’ ” of “avoid[ing] harm” to employees, Faragher, supra, at 806, for if an employee reporting discrimination in answer to an employer’s questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses.
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The National Law Journal has a good article this morning by Robert Niccolini regarding the ongoing split in the circuits on the issue of so-called "cat's paw" theory of liability in employment discrimination cases. Under the "cat's paw" theory, an employer can be held liable for discrimination when a final decision-maker is influenced to take an adverse action against another worker by a lower-level employee with discriminatory motives. 