Crawford v. Metropolitan Government of Nashville and Davidson County, 555 U.S. 271 (2009)

On April 16, 2008, the AAUP joined in an amicus brief (.pdf) filed in the U.S. Supreme Court by a coalition consisting of the AAUP, the National Employment Lawyers Association, the National Employment Law Project, and Public Justice, P.C.  The amicus brief supports the appeal of petitioner Vicky Crawford against her former employer. This case raises important Title VII issues central to the AAUP’s mission. 

The petitioner, Vicky Crawford, was a thirty-one-year employee of the Metropolitan Government of Nashville and Davidson County, Tennessee (“Metro”), who worked in the employee relations office of the Nashville school system.  In 2001, the Metro Human Resources Department learned that employees in the office where Crawford worked had complained about the inappropriate conduct of their manager.   Metro investigated these complaints and interviewed Crawford (who was not one of the original complainants) regarding the manager’s conduct. During the interview, Crawford reported that the manager had made sexually explicit remarks and gestures towards her.  Two other employees provided similar accounts of the manager’s conduct.  Ultimately, Metro took no disciplinary action against the manager, but the two other employees who had disclosed the manager’s misconduct were quickly discharged on other grounds. Crawford herself was terminated in January 2003 on grounds that ultimately proved unfounded. Crawford filed a lawsuit claiming retaliation in violation of Title VII.  

Crawford claimed that her cooperation in Metro’s internal investigation constituted both “opposition” to a practice made unlawful by Title VII and “participation” in a Title VII investigation – both actions explicitly protected by Title VII.  Crawford argued that Metro violated both the “opposition” and “protection” clauses of Title VII when it discharged her for cooperating in its investigation. 

The federal trial court rejected Crawford’s claims that either Title VII’s opposition or participation clause applied to her and ruled in favor of Metro. Crawford appealed and the United States Court of Appeals for the Sixth Circuit affirmed [.pdf] the district court’s judgment. The appeals court ruled that Crawford’s actions did not constitute “opposition” under Title VII because Crawford allegedly did not take an “active” and “consistent” stance against her manager’s discriminatory acts. The court also held that Crawford’s “participation” in Metro’s internal investigation was not protected activity under the participation clause because no EEOC charge had yet been filed in the matter. According to the court, the “participation” clause only protects employees who agree to help their employer investigate discrimination after “an employee . . . [has] filed a charge with the EEOC or otherwise instigated proceedings under Title VII.” 

After the Sixth Circuit issued its decision, Crawford asked the U.S. Supreme Court to review the Sixth Circuit’s reasoning, and the Supreme Court agreed. The AAUP and our coalition partners filed an amicus brief arguing in favor of Crawford’s position that the Sixth Circuit had erred. 

The coalition’s brief focuses on the conflict between the Sixth Circuit and other federal appeals courts, which extend protection to employees participating in an investigation even before an EEOC complaint is filed. In addition, the brief argues that Congress intended Title VII’s “participation” and “opposition” clauses to be very broadly defined, to provide an incentive to participate in discrimination investigations or oppose acts of discrimination. In fact, courts generally recognize that Congress intended employers to police themselves under Title VII and have interpreted the “participation” and “opposition” clauses with this understanding.  Finally, the brief notes that the Sixth Circuit’s opinion actually exposes not only employees, but also 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 an EEOC charge, then employees will protect themselves by filing EEOC charges immediately. Employers will thus be deprived of the ability to address potentially discriminatory situations without government involvement. 

In the higher education context, a decision by the Supreme Court upholding the Sixth Circuit’s ruling could put at risk faculty members and other employees who participate in an internal harassment or discrimination investigation before an EEOC charge is filed, and could inhibit the ability of faculty grievance committees to accurately investigate and assess harassment- or discrimination-related grievances.

Update: On January 26, 2009, the Supreme Court unanimously reversed and remanded (.pdf)  the Sixth Circuit decision. The Supreme Court reviewed the conflict among circuit courts and held that the “opposition” clause of Title VII’s anti-retaliation provisions protects an employee who testifies in an internal investigation of alleged harassment. The Court ruled that Title VII’s protection “extends to an employee who speaks out about discrimination during an employer’s internal investigation.” The Supreme Court ruling did not reach the issue of whether the “participation clause” of the anti-retaliation provisions also protects such an employee.