Employees Retaliation Rights Look to Be Gaining More Ground in the Workplace

More employee retaliation rights in the employment context may be seen as emerging from the Supreme Court's questioning during a recent case, Crawford v. Nashville and Davidson County. Tony Mauro, writing for the Legal Time in Supreme Court Hears Environmental, Employment Discrimination Cases, writes:

And in the employment case, Crawford v. Nashville and Davidson County, lawyers for a Nashville, Tenn., school employee and for the Bush administration appeared to persuade the Court that Title VII of the Civil Rights Act protects employees from retaliation even when they complain about sexual harassment during an internal investigation -- before any formal charges are made.

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In the employment case, the Court has in recent years been favorable to claims by those who suffer retaliation for complaining about Title VII workplace discrimination in the context of Equal Employment Opportunity Commission investigations. But the case before the Court involves the firing of someone who complained about sexual harassment during an internal investigation before any EEOC charges were filed -- a not uncommon scenario.

Vicky Crawford, the Nashville school employee in the case, complained about a supervisor's lewd behavior in an interview with a human resources department official, but made no formal charges and was later fired. The 6th U.S. Circuit Court of Appeals ruled that she was not protected from retaliation because her complaints did not amount to the kind of "active opposition" to school policies that Title VII requires.

University of Washington School of Law professor Eric Schnapper, a veteran advocate for employees in civil rights cases, argued strenuously that the law covers Crawford's situation because in making her complaints, she was actively objecting to her employers' conduct.

Justices peppered him with several hypotheticals, but Schnapper held to his position. Arguing in support of Crawford, assistant to the solicitor general Lisa Blatt also said Crawford should be protected against retaliation.

Francis Young, an assistant city attorney for Nashville, argued that Crawford did not meet the "opposition" requirement of the law because she did not make formal charges of sexual harassment.

Justice John Paul Stevens and other justices reacted incredulously. Noting that Crawford had told her harasser to "get the hell out of my office," Stevens said, "That's an active opposition, it seems."

For a few related posts I've written showing a trend in employment cases, see: