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The Latest in Retaliation Law


March 1, 2012  by  Mark Busto
Category:  HR Advisor

This Advisor column was originally published in June 2009.

As many employers are aware, retaliation claims now comprise one of the largest sources of litigation and potential liability arising out of the workplace.  In a recent decision, the U.S. Supreme Court confirmed that federal law broadly protects employees who “oppose” discriminatory conduct.  The Court’s decision in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee clarifies one area of retaliation law and provides an opportunity to review other aspects of the law so as to minimize the chances of future retaliation claims.

Crawford Explains “Opposition” Activity.  In Crawford, the employer (Metro) investigated rumors of sexual harassment by its employee relations director.  When Crawford, a long-term employee, was asked whether she had witnessed inappropriate behavior by the director, she described several instances in which he had subjected her to sexually-harassing conduct.  Following the investigation, Metro took no action against the director, but it soon terminated Crawford and two other employees who, during the investigation, similarly reported sexually-harassing conduct by the director.  Metro asserted it fired Crawford for embezzlement.  She filed suit claiming her discharge was in retaliation for her involvement in the investigation.

Title VII—the federal statute prohibiting discrimination on the basis of gender, race, and other protected characteristics—also forbids retaliation against employees because they have:  (1) “opposed” any employment practice that is unlawful under Title VII (the “opposition” clause), or (2) “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII (the “participation” clause).  Crawford accused Metro of violating both clauses.  The district court rejected both elements of her claim.  It held that because she merely answered questions in an investigation initiated by someone else, she did not come under the opposition clause; and because the investigation was not conducted pursuant to a pending EEOC charge, she also failed to establish a violation of the participation clause.  The Sixth Circuit Court of Appeals affirmed, stating that to be entitled to protection under the opposition clause, in particular, the employee must have engaged in “active, consistent ‘opposing’ activities.”  It concluded Crawford had not done so where she did not initiate a complaint or take any action other than providing information during the investigation.

On review, the Supreme Court disagreed that “opposing” discriminatory conduct under Title VII is limited to “active, consistent” behavior such as the initiation of a complaint.  On the contrary, the Court stated, an employee’s communication to her employer that she believes the employer has engaged in discrimination virtually always constitutes the employee’s opposition to the discriminatory activity.  Whether the employee reports discriminatory conduct on her own initiative or in response to questions by the employer is irrelevant.  The Court further indicated that protected “opposition” may consist of nothing more than disclosing the employee’s belief that certain conduct is unlawful, as, for example, where an employee refuses to follow a supervisor’s order to fire another worker for discriminatory reasons.  Applying this reasoning, the Court held that Crawford’s report of sexually-harassing conduct in response to questions during an investigation was activity protected by Title VII’s opposition clause; accordingly, retaliation based on her report was prohibited.1  The Court sent the case back to the district court for further consideration.

Impact of CrawfordCrawford makes clear that activities protected from retaliation under Title VII are to be viewed broadly.  Further, though the decision addresses only the retaliation provisions of Title VII, its holding almost certainly will guide the interpretation of other federal and state statutes prohibiting retaliation, many of which contain “opposition” language similar to Title VII.  As a result, any communication to a supervisor, manager, or human resources staff member expressing the belief that the reporting individual or other employees are being subjected to discrimination (including harassment) based on a legally protected status should be considered protected opposition activity, regardless of whether the reporting employee follows formal complaint procedures.

Other Important Retaliation Factors.  Understanding the parameters of retaliation claims provides a foundation for avoiding or, if necessary, defending against them.

  • Retaliation claims are often successful even where the reported discrimination underlying them is not substantiated.  Courts have held that to qualify for protection from retaliation, the employee reporting discrimination need only have a reasonable, good faith belief that discrimination has occurred.  Thus, even where a report of discrimination appears unfounded, employers should take the same precautions to avoid disciplinary or other adverse action that is likely to be viewed as retaliatory based on the report.
  • Retaliation may consist of any action a reasonable employee would find materially adverse, that is, any action that might dissuade a reasonable employee from making or supporting a charge of discrimination.  Although petty slights will not meet this standard, actions short of discipline or discharge—such as assignment to more arduous or unpleasant tasks—may support a retaliation claim.  Indeed, even actions taken after an employee has left employment, such as a bad employment reference that prevents the employee from obtaining a new job, may be found retaliatory if they are not based on legitimate business factors.
  • The sooner an adverse action follows the protected activity, the stronger will be the presumption that it was taken because of the activity and was thus retaliatory.  Still, engaging in protected activity does not immunize an employee from legitimate performance-based discipline or other employment action.  This is especially true when the decision to take the action predated the employer’s knowledge of the protected activity.  In general, to overcome an inference of retaliation when taking disciplinary or other adverse action soon after protected activity, it is critical to be able to demonstrate the legitimate factors that led to the action.  Regularly documenting performance concerns and discussions can be helpful for this purpose.
  • Retaliation requires knowledge of the protected activity.  Keep reports of discrimination and any follow-up investigations as confidential as possible.  In addition, isolate the individual reported to have engaged in discrimination or harassment from any adverse employment decisions involving the reporting employee.

1Given that determination, the Court chose not to consider whether Crawford was also protected under the participation clause. However, the Court’s broad reading of the opposition clause may well apply to the participation clause as well.


MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.

About Mark Busto

Mark Busto writes for MRSC as a HR Advisor.

Mark Busto, Attorney with Sebris Busto James, Bellevue, is a seasoned employment law counselor and litigator with a strong professional background in labor-management relations. He has represented employers in discrimination cases before judges and juries in both state and federal court and has arbitrated many labor and employment matters.

The views expressed in Advisor columns represent the opinions of the author and do not necessarily reflect those of MRSC.

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