In Crawford v. Metropolitan Government of Nashville & Davidson County, U.S. No. 06-1595 (January 26, 2009), the United States Supreme Court expanded employers’ liability under Title VII to those who retaliate against employees who disclose unlawful conduct in response to questions that arise during an internal investigation. In Crawford, the employer (“Metro”) initiated an internal investigation into rumors of sexual harassment of its employee relations director (Hughes). During the investigation, Metro interviewed Vicki Crawford, a thirty year employee. Ms. Crawford was asked whether she had witnessed “inappropriate behavior” by Mr. Hughes. She proceeded to describe several instances of sexually harassing behavior. Two other employees also reported being sexually harassed by Mr. Hughes. Although Metro took no action against Hughes, it fired Ms. Crawford and the other two accusers. The reason given for Ms. Crawford’s termination was “embezzlement.” Ms. Crawford subsequently filed an EEOC charge and this litigation claiming retaliation under Title VII’s “opposition” and “participation” clauses.

Title VII Section 704(a) protects an employee from retaliation because the employee “has opposed” an unlawful employment practice or “participated in any manner in an investigation ... under this chapter.” The Sixth Circuit held that Crawford was not protected by either the “opposition” clause or the “participation” clause. Specifically, it held that the opposition clause “demands active, consistent opposing activities to warrant . . . protection against retaliation.” Crawford also had not “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.” Further, it held that Crawford could show no violation of the participation clause because her employer’s investigation was not in response to a pending EEOC charge.

Contrary to the Sixth Circuit’s interpretation of the opposition clause, the Supreme Court held that an employee need not actively and consistently oppose unlawful practices, or initiate or instigate a complaint, to be covered under Title VII. Instead, it held that “opposition,” which the Legislature left undefined, carries its ordinary dictionary meaning: “to resist or antagonize . . . ; to contend against; to confront; resist; withstand.” Inclusive in this definition was Crawford’s “ostensibly disapproving account of sexually obnoxious behavior toward her by a fellow employee” which she gave in response to a question asked by her employer.