ACSBlog: The Blog of the American Constitution Society

by David L. Hudson Jr., a First Amendment Scholar at the Freedom Forum First Amendment Center. Hudson writes regularly on free-speech and employment discrimination issues.

Crawford v. Metropolitan Gov’t of Nashville may fall under the radar of many who watch the Supreme Court’s upcoming term.   It should not as it is one of the most important cases before the high court this fall.  The case impacts employees and employers nationwide and addresses an important issue under the anti-retaliation provision of Title VII.  Title VII’s anti-retaliation provision contains an opposition clause and a participation clause.  It protects those workers who oppose unlawful employment discrimination practices and those workers who “in any way” participate in an employment discrimination proceeding, such as a formal EEOC investigation.   

However, the federal courts of appeals have ruled in their lack of wisdom that employees who give testimony or participate in internal employer investigations receive no protection under Title’s anti-retaliation provision.    The Sixth U.S. Circuit Court of Appeals in a cursory per curiam opinion reached such a result in the case of Vicky Crawford – a 30-year employee of the Metro School District who was terminated after she said during an employer interviewer that her supervisor sexually harassed her and other employees. 

These egregious facts show the danger of the Sixth Circuit’s myopic interpretation of the anti-retaliation provision of Title VII.   Employee-witnesses will be chilled from speaking the truth about inappropriate sexual conduct by supervisors and co-workers for fear of meeting the same fate of Vicky Crawford.   The message such a perverse result sends is “tell the truth about harassment and discrimination and face possible termination.”  

There is some reason for optimism at the U.S. Supreme Court.  The EEOC has interpreted Title VII to cover employees who participate and speak out during internal, employer investigations.  The United States has filed an amicus brief in support of Crawford before the Supreme Court.   Finally, the Roberts Court has proven to be somewhat sensitive to employees alleging retaliation in employment in such decisions as Burlington Northern v. White, Gomez-Perez v. Potter and CBOCS West v. Humphries.