In 2002, local Tennessee school officials conducted an internal investigation into charges of sexual misconduct by the school district’s employee relations director, Gene Hughes. During the investigation, Vicky Crawford, a payroll supervisor, reported that she witnessed and had been the victim of sexual harassment by Hughes. The investigation did not result in any disciplinary action or EEOC charge against Hughes. Six months later, Crawford was fired for alleged embezzlement and drug use, along with two other employees who had participated in the investigation.
Crawford filed a charge of discrimination with the EEOC, alleging that she had been fired in retaliation for what she told investigators about Hughes. Crawford later brought her suit in federal court, asserting that her employer’s actions violated Title VII of the Civil Rights Act, which forbids retaliation against an employee because the employee has participated in an investigation, proceeding, or hearing “under this subchapter” (known as the “participation clause”).
The district court granted summary judgment for the employer, holding that employees are not protected under Title VII’s anti-retaliation provision when participating in an employer’s internal investigation. The Sixth Circuit affirmed, holding that “participation in an internal investigation” initiated by the employer, “in the absence of any pending EEOC charge,” is not a “protected activity” under Title VII’s participation clause. The court also reasoned that extending Title VII’s protections to internal investigations may deter employers from undertaking such investigations.
The Supreme Court will now decide whether Title VII’s anti-retaliation provision protects employees from being terminated when they allege misconduct by another employee during their employer’s internal investigation of discrimination. This is a tricky situation because allowing retaliation suits prior to formal charges at the EEOC will increase litigation, but not allowing them will encourage employees to file charges under the EEOC’s procedures.
On 1/26/09, the Supreme Court unanimously reversed, holding that Title VII's anti-retaliation provision protects employees from being terminated when they allege misconduct by another employee during their employer's internal investigation of discrimination. The Court stated that 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." In his concurring opinion, Justice Alito remarked that this holding did not address "opinions" that were not communicated directly to the employer but instead were informally communicated to co-workers, thereby suggesting that such opinions would not be protected by the anti-retaliation provision.