Justices Extend Anti-Retaliation Protection

     (CN) – Employees who speak out about workplace discrimination during an internal investigation are protected by anti-retaliation laws, the U.S. Supreme Court ruled Monday. To hold otherwise would allow a “freakish rule” that protects employees who speak out on their own initiative, but not those who report the same discrimination when answering their boss’ questions, Justice Souter wrote.

     In 2002, the Metropolitan Government of Nashville and Davidson County began investigating rumors of sexual harassment by the Metro School District’s employee relations director, Gene Hughes.
     A Metro human resources officer asked Vicky Crawford, a 30-year Nashville government employee, whether she had witnessed any “inappropriate behavior” by Hughes. She replied that she had, and described several incidents of sexual harassment, including allegations that Hughes grabbed her head and “pulled it to his crotch.”
     Metro took no action against Hughes, but fired Crawford and two other accusers in the wake of the investigation. Metro claimed it had fired Crawford for embezzlement, but she maintained that her firing had been retaliation for speaking out about Hughes’ misconduct.
     The anti-retaliation provision of Title VII, in part, makes it illegal for an employer to fire an employee who “has opposed any practice made an unlawful practice.”
     The district court ruled that Crawford failed to satisfy the opposition provision, as she had “merely answered questions by investigators in an already-pending internal investigation, initiated by someone else.”
     The 6th Circuit affirmed, holding that the opposition clause, as stated in Bell v. Safety Grooving & Grinding, “demands active, consistent ‘opposing’ activities to warrant … protection against retaliation.”
     The Supreme Court reversed, finding that anti-retaliation protection extends to opposition which surfaces during an internal investigation.
     Justice Souter said the term “oppose” doesn’t require “active, consistent” behavior, citing people who opposed slavery before abolition, and those who oppose capital punishment but haven’t written angry letters to the government or taken to the streets.
     “There is, then, no reason to doubt that a person can ‘oppose’ by responding to someone else’s question just as surely as by provoking the discussion,” Souter wrote, “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 asks a question.”
     Justices Alito and Thomas concurred in judgment, but Alito wrote separately to emphasize his understanding that “the Court’s holding does not and should not extend beyond employees who testify in internal investigations or engage in analogous purposive conduct.”
     Protection should not apply to employees who “never expressed a word of opposition to their employers,” Alito concluded.

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