The Supreme Court today held that Title VII’s opposition clause extends to those who protest discrimination during an employer’s internal investigation of another employee’s complaint, thereby reversing the Sixth Circuit’s ruling to the contrary. Justice Alito’s separate concurrence would not extend oppositional activity beyond that relating to internal investigations.
Some excerpts follow:
http://www.supremecourtus.gov/opinions/08pdf/06-1595.pdf
CRAWFORD v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 06–1595. Argued October 8, 2008—Decided January 26, 2009 … 211 Fed. Appx. 373, reversed and remanded. SOUTER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, SCALIA, KENNEDY, GINSBURG, and BREYER, JJ., joined. ALITO, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined. JUSTICE SOUTER delivered the opinion of the Court. Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq. (2000 ed. and Supp.V), forbids retaliation by employers against employees who report workplace race or gender discrimination. The question here is whether this protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation. We hold that it does. The Court of Appeals affirmed on the same grounds, holding that the opposition clause "‘demands active, consistent "opposing" activities to warrant . . . protection against retaliation,’" 211 Fed. Appx., at 376 (quoting Bell v. Safety Grooving & Grinding, LP, 107 Fed. Appx. 607,610 (CA6 2004)), whereas Crawford did "not claim to have instigated or initiated any complaint prior to her participation in the investigation, nor did she take any further action following the investigation and prior to her firing." 211 Fed. Appx., at 376. Again like the trial judge, the Court of Appeals understood that Crawford could show no violation of the participation clause because her "‘employer’s internal investigation’" was not conducted "‘pursuant to a pending EEOC charge.’ " Ibid. (quoting Abbott, supra, at 543). Because the Sixth Circuit’s decision conflicts with those of other Circuits, particularly as to the opposition clause, see, e.g., McDonnell v. Cisneros, 84 F. 3d 256, 262 (CA71996), we granted Crawford’s petition for certiorari. 552 U. S. ___ (2008). We now reverse and remand for further proceedings. II. The opposition clause makes it "unlawful . . . for an employer to discriminate against any . . . employe[e] . . . because he has opposed any practice made . . . unlawful. . . by this subchapter." §2000e–3(a). The term "oppose," being left undefined by the statute, carries its ordinary meaning, Perrin v. United States, 444 U. S. 37, 42 (1979): "to resist or antagonize . . . ; to contend against; to confront; resist; withstand," Webster’s New International Dictionary 1710 (2d ed. 1958). Although these actions entail varying expenditures of energy, "RESIST frequently implies more active striving than OPPOSE." Ibid.; see also Random House Dictionary of the English Language 1359 (2d ed. 1987) (defining "oppose" as "to be hostile or adverse to, as in opinion"). The statement Crawford says she gave to Frazier is thus covered 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 would certainly qualify in the minds of reasonable jurors as "resist[ant]" or "antagoni[stic]" to Hughes’s treatment, if for 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 the employer has engaged in . . . a form of employment discrimination, that communication" virtually always "constitutes the employee’s opposition to the activity." Brief for United States as Amicus Curiae 9 (citing 2 EEOC Compliance Manual §§8–II–B(1), (2), p. 614:0003 (Mar. 2003)); see also Federal Express Corp. v. Holowecki, 552 U. S. ___, ___ (2008) (slip op., at 8) (explaining that EEOC compliance manuals "reflect ‘a body of experience and informed judgment to which courts and litigants may properly resort for guidance’" (quoting Bragdon v. Abbott, 524 U. S. 624, 642 (1998))). It is true that one can imagine exceptions, like an employee’s description of a supervisor’s racist joke as hilarious, but these will be eccentric cases, and this is not one of them. . . . "Oppose" goes beyond "active, consistent" behavior in ordinary discourse, where we would naturally use the word to speak of someone who has taken no action at all to advance a position beyond disclosing it. Countless people were known to "oppose" slavery before Emancipation, or are said to "oppose" capital punishment today, without writing public letters, taking to the streets, or resisting the government. And we would call it "opposition" if an employee took a stand against an employer’s discriminatory practices not by "instigating" action, but by standing pat, say, by refusing to follow a supervisor’s order to fire a junior worker for discriminatory reasons. Cf. McDonnell, supra, at 262 (finding employee covered by Title VII of the Civil Rights Act of 1964 where his employer retaliated against him for failing to prevent his subordinate from filing an EEOC charge). 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, 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. . . . The possibility that an employer might someday want to fire someone who might charge discrimination traceable to an internal investigation does not strike us as likely to diminish the attraction of an Ellerth-Faragher affirmative defense. That aside, we find it hard to see why the Sixth Circuit’s rule would not itself largely undermine the Ellerth-Faragher scheme, along with the statute’s "‘primary objective’" of "avoid[ing] harm" to employees. Faragher, supra, at 806 (quoting Albemarle Paper Co. v. Moody, 422 U. S. 405, 417 (1975)). If it were clear law that an employee who reported discrimination in answering an employer’s questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses against themselves or against others. This is no imaginary horrible given the documented indications that "[f]ear of retaliation is the leading reason why people stay silent instead of voicing their concerns about bias and discrimination." Brake, Retaliation, 90 Minn. L. Rev. 18, 20 (2005); see also id., at 37, and n. 58 (compiling studies). The appeals court’s rule would thus create a real dilemma for any knowledgeable employee in a hostile work environment if the boss took steps to assure a defense under our cases. If the employee reported discrimination in response to the enquiries, the employer might well be free to penalize her for speaking up. But if she kept quiet about the discrimination and later filed a Title VII claim, the employer might well escape liability, arguing that it "exercised reasonable care to prevent and correct [any discrimination] promptly" but "the plaintiff employee unreasonably failed to take advantage of . . .preventive or corrective opportunities provided by the employer." Ellerth, supra, at 765. Nothing in the statute’s text or our precedent supports this catch-22. Because Crawford’s conduct is covered by the opposition clause, we do not reach her argument that the Sixth Circuit misread the participation clause as well. But that does not mean the end of this case, for Metro’s motion for summary judgment raised several defenses to the retaliation charge besides the scope of the two clauses; the District Court never reached these others owing to its ruling on the elements of retaliation, and they remain open on remand. III. The judgment of the Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. JUSTICE ALITO, with whom JUSTICE THOMAS joins, concurring in the judgment. The question in this case is whether Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq. (2000 ed. and Supp. V), prohibits retaliation against an employee who testifies in an internal investigation of alleged sexual harassment. I agree with the Court that the "opposition clause" of §2000e–3(a)(2000 ed.) prohibits retaliation for such conduct. I also agree with the Court’s primary reasoning, which is based on "the point argued by the Government and explained by an EEOC guideline: ‘When an employee communicates to her employer a belief that the employer has engaged in . . . a form of employment discrimination, that communication’ virtually always ‘constitutes the employee’s opposition to the activity.’" Ante, at 4. I write separately to emphasize my 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. . . . [Alan R. Kabat, Bernabei & Wachtel, PLLC]
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