AAUP Files Brief in Sexual-Harassment Case
By Nicholas M. Manicone
Imagine that you are the victim of sexual harassment or other discrimination in your workplace. Your employer learns of the incident and calls you to the human resources department to discuss it. The interviewer seems concerned and helpful; you are relieved that your employer is going to put an end to the discriminatory acts. And then you are fired.
Something like this happened to Vicky Crawford, the plaintiff in Crawford v. Metropolitan Government of Nashville and Davidson County, a case in which the AAUP recently submitted an amicus brief to the U.S. Supreme Court. Crawford had worked in the employee-relations office of the Nashville, Tennessee, school system. The human resources department for the city and county government (“Metro”) learned that some employees in Crawford’s office had complained that their manager had sexually harassed them. When a Metro investigator spoke with Crawford about these allegations, Crawford (who was not one of the original complainants) told the investigator that the manager had also made sexually explicit remarks and gestures toward her. Two other employees reported similar misconduct to investigators.
Metro took no disciplinary action against the manager but shortly thereafter dismissed all three employees. Crawford sued Metro, claiming that the city had retaliated against her in violation of Title VII of the Civil Rights Act of 1964, which bans discrimination in employment on the basis of sex, among other things. This ban on sex discrimination has been interpreted by the Supreme Court as barring sexual harassment as well.
Crawford’s suit turned on the particular protections provided by Title VII. The statute protects not only the direct victims of discrimination, but also those who oppose it or participate in investigations intended to expose it. In her suit against Metro, Crawford claimed that her cooperation in Metro’s internal investigation constituted both opposition to discrimination and participation in a Title VII investigation, and that her dismissal was unlawful because it was based on protected activities. The district court ruled against her, and the U.S. Court of Appeals for the Sixth Circuit upheld the district court’s decision. The appeals court held that Crawford had not taken an “active” and “consistent” stance against discrimination and therefore was not protected by the opposition clause of Title VII. The court also held that because no complaint had been filed with the Equal Employment Opportunity Commission (EEOC) when Crawford cooperated in Metro’s internal investigation, she was not protected by Title VII’s participation clause.
The U.S. Supreme Court agreed to review the Sixth Circuit’s reasoning. The AAUP submitted a joint amicus brief to the Court with the National Employment Lawyers Association, the National Employment Law Project, and Public Justice, P.C. The brief argues that Congress intended Title VII’s protections to be broadly construed to provide employees with an incentive to participate in discrimination investigations or oppose discriminatory acts and to provide employers with an incentive to conduct internal investigations. The brief also notes that the Sixth Circuit’s opinion exposes both employees and employers to increased risk and uncertainty. If an employer cannot assure its employees that they will not be disciplined for participating in an internal investigation prior to the filing of a formal EEOC charge, then employees will protect themselves by filing EEOC charges immediately. Employers and employees would then be deprived of the ability to address potentially discriminatory situations without government involvement and the delay such involvement often creates.
In the higher education context, a decision by the Supreme Court upholding the Sixth Circuit’s ruling could put at risk faculty members who participate in an internal investigation before an EEOC charge is filed and could impede the ability of faculty grievance committees fully to investigate and assess grievances related to harassment or discrimination.
The Supreme Court is expected to issue its decision in the Crawford case by late June 2008. Check the AAUP Web site for additional updates on this case.
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