The U.S. Supreme Court today heard arguments in a case involving alleged sexual harassment in a school district central office. The justices appeared inclined to give a broad reading of an anti-retaliation provision of the main federal employment-discrimination law.
Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace based on race, sex, and other factors, and it covers sexual harassment. One provision of Title VII is designed to prohibit retaliation by employers against those who “opposed” an unlawful employment practice, or “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” related to such an unlawful practice.
The awkwardly worded provision was the result of a compromise in Congress to strike a balance that would “protect the rights of employees to report allegedly discriminatory activity, as well as employers’ rights to manage their workplaces,” Francis H. Young, a lawyer representing the school district, told the justices during oral arguments on Oct. 8 in Crawford v. Metropolitan Government of Nashville and Davidson County, Tenn. (Case No. 06-1595.)
The appeal was brought by Vicky S. Crawford, a longtime payroll specialist for the Metro Nashville school district. According to court papers, the Metro Nashville-Davidson County government, which encompasses the 75,000-student district, began an investigation in 2002 after receiving allegations that Gene Hughes, the school system’s director of employee relations, was harassing women in his office.
Crawford did not initiate the complaint about her boss, but she cooperated with the inquiry and told investigators about crude, sexually related comments that Hughes had allegedly made, including to her, court papers say.
The investigator could not corroborate the most serious charges of sexual harassment againt Hughes, and there was no disciplinary action taken against him. the supervisor had not been corroborated. Within a few months, Crawford was dismissed from her job, with the government agency citing financial improprieties in the payroll division.
Crawford sued under Title VII, but she lost in both a federal district court and the U.S. Court of Appeals for the 6th Circuit, in Cincinnati. The appeals court said Crawford did not merit protection under the “opposition” clause of the anti-retaliation provision. Her actions to give investigators unfavorable information about the supervisor did not qualify as “overt opposition” because Crawford did not initiate her own sexual harassment complaint, the court said.
Eric Schnapper, a lawyer representing the dismissed employee before the Supreme Court, said, “When Vicky Crawford reported to city officials that she had been repeatedly harassed by the [school system’s] director of employee relations, her conduct was protected by [the anti-retaliation section] of Title VII.” [Crawford’s merits brief is here. The school system’s brief is here.]
Crawford has the support of numerous civil rights groups, as well as the Tennessee Education Association and Metropolitan Nashville Education Association, which filed a friend-of-the-court briefon her side. The Bush administration also supports the ex-employee’s interpretation of the anti-retaliation provision.
Lisa S. Blatt, an assistant to the U.S. solicitor general, told the justices that the 6th Circuit court “left a gaping hole” in Title VII protection.
“It is an inexplicable gap that a complaining witness in an employer investigation would be unprotected from retaliation,” she said.
The school district is supported by the National School Boards Association, which argued in a brief that allowing “passive involvement” in an internal investigation of workplace discrimination would mean that “poorly performing employees could use Title VII as a sword to insulate themselves from adverse employment action by intentionally involving themselves in an internal investigation,” the NSBA brief said.
During the arguments, Justice Antonin Scalia took up that theme.
“Whenever the employer conducts such an investigation, any employee who is smart enough to come in and testify against sexual harassment has a guaranteed job,” he said. “It is almost like ... being a federal judge.”
But several justices sharply questioned Mr. Young, the school system’s lawyer.
Justice John Paul Stevens noted that Ms. Crawford said to her supervisor during one instance of alleged harassment, “Get the hell out of my office.”
“She’s opposing his advance to her,” Justice Stevens said. “That’s an active opposition, it seems.”
Justice Ruth Bader Ginsburg said that Title VII “is a statute that’s meant to govern the workplace with all of its realities. One of them was when they asked, ‘Well, why didn’t you make a complaint, use whatever internal remedies there are?’ She said, ‘Because the person in this outfit who is charged with receiving complaints is the harasser.’”
The case will be decided by next June.
A version of this news article first appeared in The School Law Blog.