Supreme Court broadly interprets Title VII's "opposition clause"

The text of Title VII of the Civil Rights Act of 1964 is not that long, at least the parts that outline what's legal and what's not. Employment lawyers mostly follow the case law without actually parsing the statute, except that some portions have never been interpreted by the Supreme Court. One of those portions is the "opposition clause," at least in the context of in-house sexual harassment investigations. The Court just handed down its first interpretation.

The case is Crawford v. Metropolitan Government of Nashville, decided on January 27.

The opposition clause makes it "unlawful . . . for anemployer to discriminate against any . . . employe[e] . . . because he has opposed any practice made . . . unlawful. . . by this subchapter." We all know the opposition clause covers the victim of employment discrimination who files an EEOC charge or speaks out against discrimination at work. In this case, the question was whether it prevents the employer from firing a witness who answers the employer's questions about sexual harassment pursuant to an in-house investigation. Under a dictionary definition of "oppose," the Supreme Court says the witness was officially "opposing" discrimination and therefore cannot be fired.

The key to this case is that although Crawford did not go out of her way to oppose the sexual harassment and she did not affirmatively oppose it, she did "oppose" the harassment simply by reporting it to management in the course of their investigation. The Court explained,

The statement Crawford says she gave to Frazier is thuscovered by the opposition clause, as an ostensibly disapproving account of sexually obnoxious behavior toward her by a fellow employee, an answer she says antagonized her employer to the point of sacking her on a false pretense. Crawford’s description of the louche goings-on wouldcertainly qualify in the minds of reasonable jurors as "resist[ant]" or "antagonistic" to Hughes’s treatment, iffor no other reason than the point argued by the Government and explained by an EEOC guideline: "When an employee communicates to her employer a belief that theemployer has engaged in . . . a form of employment discrimination, that communication" virtually always "constitutes the employee’s opposition to the activity."

The City argued that this broad interpretation of "oppose" would make it less likely that management will root out workplace discrimination because any witnesses to the discrimination may then bring a retaliation suit if they are disciplined for some other reason afterwards. The Court is not convinced. If anything, the Court suggests, a narrow interpretation of the opposition clause would prevent management from rooting out discrimination because potential witnesses will not want to come forward with eyewitness accounts. As the Supreme Court has encouraged these investigations in Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 (1998), and Faragher v. Boca Raton, 524 U. S. 775 (1998), this broader interpretation is appropriate.