Crawford v. Metropolitan Government of Nashville and Davidson Cty. , 129 S. Ct. 846 ( 2009 )


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  • (Slip Opinion)              OCTOBER TERM, 2008                                       1
    Syllabus
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
    being done in connection with this case, at the time the opinion is issued.
    The syllabus constitutes no part of the opinion of the Court but has been
    prepared by the Reporter of Decisions for the convenience of the reader.
    See United States v. Detroit Timber & Lumber Co., 
    200 U. S. 321
    , 337.
    SUPREME COURT OF THE UNITED STATES
    Syllabus
    CRAWFORD v. METROPOLITAN GOVERNMENT OF
    NASHVILLE AND DAVIDSON COUNTY, TENNESSEE
    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
    THE SIXTH CIRCUIT
    No. 06–1595. Argued October 8, 2008—Decided January 26, 2009
    In response to questions from an official of respondent local government
    (Metro) during an internal investigation into rumors of sexual har
    assment by the Metro School District employee relations director
    (Hughes), petitioner Crawford, a 30-year employee, reported that
    Hughes had sexually harassed her. Metro took no action against
    Hughes, but soon fired Crawford, alleging embezzlement. She filed
    suit under Title VII of the Civil Rights Act of 1964, claiming that
    Metro was retaliating for her report of Hughes’s behavior, in violation
    of 42 U. S. C. §2000e–3(a), which makes it unlawful “for an employer
    to discriminate against any . . . employe[e]” who (1) “has opposed any
    practice made an unlawful employment practice by this subchapter”
    (opposition clause), or (2) “has made a charge, testified, assisted, or
    participated in any manner in an investigation, proceeding, or hear
    ing under this subchapter” (participation clause). The court granted
    Metro summary judgment, and the Sixth Circuit affirmed, holding
    that the opposition clause demanded “active, consistent” opposing ac
    tivities, whereas Crawford had not initiated any complaint prior to
    the investigation, and finding that the participation clause did not
    cover Metro’s internal investigation because it was not conducted
    pursuant to a Title VII charge pending with the Equal Employment
    Opportunity Commission.
    Held: The antiretaliation provision’s protection extends to an employee
    who speaks out about discrimination not on her own initiative, but in
    answering questions during an employer’s internal investigation.
    Because “oppose” is undefined by statute, it carries its ordinary dic
    tionary meaning of resisting or contending against. Crawford’s
    statement is thus covered by the opposition clause, as an ostensibly
    2         CRAWFORD v. METROPOLITAN GOVERNMENT OF
    NASHVILLE AND DAVIDSON CTY.
    Syllabus
    disapproving account of Hughes’s sexually obnoxious behavior toward
    her. “Oppose” goes beyond “active, consistent” behavior in ordinary
    discourse, and may be used to speak of someone who has taken no ac
    tion at all to advance a position beyond disclosing it. Thus, a person
    can “oppose” by responding to someone else’s questions just as surely
    as by provoking the discussion. Nothing in the statute requires a
    freakish rule protecting an employee who reports discrimination on
    her own initiative but not one who reports the same discrimination in
    the same words when asked a question. Metro unconvincingly ar
    gues for the Sixth Circuit’s active, consistent opposition rule, claim
    ing that employers will be less likely to raise questions about possible
    discrimination if a retaliation charge is easy to raise when things go
    badly for an employee who responded to enquiries. Employers, how
    ever, have a strong inducement to ferret out and put a stop to dis
    criminatory activity in their operations because Burlington Indus
    tries, Inc. v. Ellerth, 
    524 U. S. 742
    , 765, and Faragher v. Boca Raton,
    
    524 U. S. 775
    , 807, hold “[a]n employer . . . subject to vicarious liabil
    ity to a victimized employee for an actionable hostile environment
    created by a supervisor with . . . authority over the employee.” The
    Circuit’s rule could undermine the Ellerth-Faragher scheme, along
    with the statute’s “ ‘primary objective’ ” of “avoid[ing] harm” to em
    ployees, Faragher, supra, at 806, for if an employee reporting dis
    crimination in answer to an employer’s questions could be penalized
    with no remedy, prudent employees would have a good reason to keep
    quiet about Title VII offenses. Because Crawford’s conduct is covered
    by the opposition clause, this Court does not reach her argument that
    the Sixth Circuit also misread the participation clause. Metro’s other
    defenses to the retaliation claim were never reached by the District
    Court, and thus remain open on remand. Pp. 3–8.
    
    211 Fed. Appx. 373
    , reversed and remanded.
    SOUTER, J., delivered the opinion of the Court, in which ROBERTS,
    C. J., and STEVENS, SCALIA, KENNEDY, GINSBURG, and BREYER, JJ.,
    joined. ALITO, J., filed an opinion concurring in the judgment, in which
    THOMAS, J., joined.
    Cite as: 555 U. S. ____ (2009)                              1
    Opinion of the Court
    NOTICE: This opinion is subject to formal revision before publication in the
    preliminary print of the United States Reports. Readers are requested to
    notify the Reporter of Decisions, Supreme Court of the United States, Wash
    ington, D. C. 20543, of any typographical or other formal errors, in order
    that corrections may be made before the preliminary print goes to press.
    SUPREME COURT OF THE UNITED STATES
    _________________
    No. 06–1595
    _________________
    VICKY S. CRAWFORD, PETITIONER v. METRO-
    POLITAN GOVERNMENT OF NASHVILLE
    AND DAVIDSON COUNTY, TENNESSEE
    ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
    APPEALS FOR THE SIXTH CIRCUIT
    [January 26, 2009]
    JUSTICE SOUTER delivered the opinion of the Court.
    Title VII of the Civil Rights Act of 1964, 
    78 Stat. 253
    , as
    amended, 42 U. S. C. §2000e et seq. (2000 ed. and Supp.
    V), forbids retaliation by employers against employees
    who report workplace race or gender discrimination. The
    question here is whether this protection extends to an
    employee who speaks out about discrimination not on her
    own initiative, but in answering questions during an
    employer’s internal investigation. We hold that it does.
    I
    In 2002, respondent Metropolitan Government of                               Nash
    ville and Davidson County, Tennessee (Metro),                                  began
    looking into rumors of sexual harassment by the                                Metro
    School District’s employee relations director,                                  Gene
    Hughes.1 
    211 Fed. Appx. 373
    , 374 (CA6 2006).                                   When
    ——————
    1 Because this case arises out of the District Court’s grant of sum
    mary judgment for Metro, “we are required to view all facts and draw
    all reasonable inferences in favor of the nonmoving party, [Crawford].”
    Brosseau v. Haugen, 
    543 U. S. 194
    , 195, n. 2 (2004) (per curiam).
    2      CRAWFORD v. METROPOLITAN GOVERNMENT OF
    NASHVILLE AND DAVIDSON CTY.
    Opinion of the Court
    Veronica Frazier, a Metro human resources officer, asked
    petitioner Vicky Crawford, a 30-year Metro employee,
    whether she had witnessed “inappropriate behavior” on
    the part of Hughes, 
    id.,
     at 374–375, Crawford described
    several instances of sexually harassing behavior: once,
    Hughes had answered her greeting, “ ‘Hey Dr. Hughes,
    what’s up?,’ ” by grabbing his crotch and saying “ ‘[Y]ou
    know what’s up’ ”; he had repeatedly “ ‘put his crotch up to
    [her] window’ ”; and on one occasion he had entered her
    office and “ ‘grabbed her head and pulled it to his crotch,’ ”
    id., at 375, and n. 1. Two other employees also reported
    being sexually harassed by Hughes. Id., at 375. Although
    Metro took no action against Hughes, it did fire Crawford
    and the two other accusers soon after finishing the inves
    tigation, saying in Crawford’s case that it was for embez
    zlement. Ibid. Crawford claimed Metro was retaliating
    for her report of Hughes’s behavior and filed a charge of a
    Title VII violation with the Equal Employment Opportu
    nity Commission (EEOC), followed by this suit in the
    United States District Court for the Middle District of
    Tennessee. Ibid.
    The Title VII antiretaliation provision has two clauses,
    making it “an unlawful employment practice for an em
    ployer to discriminate against any of his employees . . . [1]
    because he has opposed any practice made an unlawful
    employment practice by this subchapter, or [2] because he
    has made a charge, testified, assisted, or participated in
    any manner in an investigation, proceeding, or hearing
    under this subchapter.” 42 U. S. C. §2000e–3(a). The one
    is known as the “opposition clause,” the other as the “par
    ticipation clause,” and Crawford accused Metro of violat
    ing both.
    The District Court granted summary judgment for
    Metro. It held that Crawford could not satisfy the opposi
    tion clause because she had not “instigated or initiated
    any complaint,” but had “merely answered questions by
    Cite as: 555 U. S. ____ (2009)            3
    Opinion of the Court
    investigators in an already-pending internal investigation,
    initiated by someone else.” Memorandum Opinion, No.
    3:03–cv–00996 (MD Tenn., Jan. 6, 2005), App. C to Pet. for
    Cert. 16a–17a. It concluded that her claim also failed
    under the participation clause, which Sixth Circuit prece
    dent confined to protecting “ ‘an employee’s participation
    in an employer’s internal investigation . . . where that
    investigation occurs pursuant to a pending EEOC charge’ ”
    (not the case here). Id., at 15a (emphasis omitted) (quot
    ing Abbott v. Crown Motor Co., 
    348 F. 3d 537
    , 543 (CA6
    2003)).
    The Court of Appeals affirmed on the same grounds,
    holding that the opposition clause “ ‘demands active, con
    sistent “opposing” activities to warrant . . . protection
    against retaliation,’ ” 211 Fed. Appx., at 376 (quoting Bell
    v. Safety Grooving & Grinding, LP, 
    107 Fed. Appx. 607
    ,
    610 (CA6 2004)), whereas Crawford did “not claim to have
    instigated or initiated any complaint prior to her partici
    pation in the investigation, nor did she take any further
    action following the investigation and prior to her firing.”
    211 Fed. Appx., at 376. Again like the trial judge, the
    Court of Appeals understood that Crawford could show no
    violation of the participation clause because her “ ‘em
    ployer’s internal investigation’ ” was not conducted “ ‘pur
    suant to a pending EEOC charge.’ ” Ibid. (quoting Abbott,
    supra, at 543).
    Because the Sixth Circuit’s decision conflicts with those
    of other Circuits, particularly as to the opposition clause,
    see, e.g., McDonnell v. Cisneros, 
    84 F. 3d 256
    , 262 (CA7
    1996), we granted Crawford’s petition for certiorari. 552
    U. S. ___ (2008). We now reverse and remand for further
    proceedings.
    II
    The opposition clause makes it “unlawful . . . for an
    employer to discriminate against any . . . employe[e] . . .
    4     CRAWFORD v. METROPOLITAN GOVERNMENT OF
    NASHVILLE AND DAVIDSON CTY.
    Opinion of the Court
    because he has opposed any practice made . . . unlawful
    . . . by this subchapter.” §2000e–3(a). The term “oppose,”
    being left undefined by the statute, carries its ordinary
    meaning, Perrin v. United States, 
    444 U. S. 37
    , 42 (1979):
    “to resist or antagonize . . . ; to contend against; to con
    front; resist; withstand,” Webster’s New International
    Dictionary 1710 (2d ed. 1958). Although these actions
    entail varying expenditures of energy, “RESIST frequently
    implies more active striving than OPPOSE.” Ibid.; see also
    Random House Dictionary of the English Language 1359
    (2d ed. 1987) (defining “oppose” as “to be hostile or adverse
    to, as in opinion”).
    The statement Crawford says she gave to Frazier is thus
    covered by the opposition clause, as an ostensibly disap
    proving account of sexually obnoxious behavior toward her
    by a fellow employee, an answer she says antagonized her
    employer to the point of sacking her on a false pretense.
    Crawford’s description of the louche goings-on would
    certainly qualify in the minds of reasonable jurors as
    “resist[ant]” or “antagoni[stic]” to Hughes’s treatment, if
    for no other reason than the point argued by the Govern
    ment and explained by an EEOC guideline: “When an
    employee communicates to her employer a belief that the
    employer has engaged in . . . a form of employment dis
    crimination, that communication” virtually always “consti
    tutes the employee’s opposition to the activity.” Brief for
    United States as Amicus Curiae 9 (citing 2 EEOC Compli
    ance Manual §§8–II–B(1), (2), p. 614:0003 (Mar. 2003));
    see also Federal Express Corp. v. Holowecki, 552 U. S. ___,
    ___ (2008) (slip op., at 8) (explaining that EEOC compli
    ance manuals “reflect ‘a body of experience and informed
    judgment to which courts and litigants may properly
    resort for guidance’ ” (quoting Bragdon v. Abbott, 
    524 U. S. 624
    , 642 (1998))). It is true that one can imagine excep
    tions, like an employee’s description of a supervisor’s
    racist joke as hilarious, but these will be eccentric cases,
    Cite as: 555 U. S. ____ (2009)                    5
    Opinion of the Court
    and this is not one of them.2
    The Sixth Circuit thought answering questions fell short
    of opposition, taking the view that the clause “ ‘demands
    active, consistent “opposing” activities to warrant . . .
    protection against retaliation,’ ” 211 Fed. Appx., at 376
    (quoting Bell, supra, at 610), and that an employee must
    “instigat[e] or initiat[e]” a complaint to be covered, 211
    Fed. Appx., at 376. But though these requirements obvi
    ously exemplify opposition as commonly understood, they
    are not limits of it.
    “Oppose” goes beyond “active, consistent” behavior in
    ordinary discourse, where we would naturally use the
    word to speak of someone who has taken no action at all to
    advance a position beyond disclosing it. Countless people
    were known to “oppose” slavery before Emancipation, or
    are said to “oppose” capital punishment today, without
    writing public letters, taking to the streets, or resisting
    the government. And we would call it “opposition” if an
    employee took a stand against an employer’s discrimina
    tory practices not by “instigating” action, but by standing
    pat, say, by refusing to follow a supervisor’s order to fire a
    junior worker for discriminatory reasons. Cf. McDonnell,
    supra, at 262 (finding employee covered by Title VII of the
    Civil Rights Act of 1964 where his employer retaliated
    against him for failing to prevent his subordinate from
    filing an EEOC charge). There is, then, no reason to doubt
    that a person can “oppose” by responding to someone else’s
    ——————
    2 Metro suggests in passing that it was unclear whether Crawford
    actually opposed Hughes’s behavior because some of her defensive
    responses were “inappropriate,” such as telling Hughes to “bite me” and
    “flip[ping] him a bird.” Brief for Respondent 1–2 (internal quotation
    marks omitted). This argument fails not only because at the summary
    judgment stage we must “view all facts and draw all reasonable infer
    ences in [Crawford’s] favor,” Brosseau, 
    543 U. S., at 195, n. 2
    , but also
    because Crawford gave no indication that Hughes’s gross clowning was
    anything but offensive to her.
    6      CRAWFORD v. METROPOLITAN GOVERNMENT OF
    NASHVILLE AND DAVIDSON CTY.
    Opinion of the Court
    question just as surely as by provoking the discussion, and
    nothing in the statute requires a freakish rule protecting
    an employee who reports discrimination on her own initia
    tive but not one who reports the same discrimination in
    the same words when her boss asks a question.
    Metro and its amici support the Circuit panel’s insis
    tence on “active” and “consistent” opposition by arguing
    that the lower the bar for retaliation claims, the less likely
    it is that employers will look into what may be happening
    outside the executive suite. As they see it, if retaliation
    is an easy charge when things go bad for an employee
    who responded to enquiries, employers will avoid the
    headache by refusing to raise questions about possible
    discrimination.
    The argument is unconvincing, for we think it underes
    timates the incentive to enquire that follows from our
    decisions in Burlington Industries, Inc. v. Ellerth, 
    524 U. S. 742
     (1998), and Faragher v. Boca Raton, 
    524 U. S. 775
     (1998). Ellerth and Faragher hold “[a]n employer . . .
    subject to vicarious liability to a victimized employee for
    an actionable hostile environment created by a supervisor
    with . . . authority over the employee.” Ellerth, 
    supra, at 765
    ; Faragher, 
    supra, at 807
    . Although there is no af
    firmative defense if the hostile environment “culminates
    in a tangible employment action” against the employee,
    Ellerth, 
    524 U. S., at 765
    , an employer does have a defense
    “[w]hen no tangible employment action is taken” if it
    “exercised reasonable care to prevent and correct promptly
    any” discriminatory conduct and “the plaintiff employee
    unreasonably failed to take advantage of any preventive or
    corrective opportunities provided by the employer or to
    avoid harm otherwise,” 
    ibid.
     Employers are thus subject
    to a strong inducement to ferret out and put a stop to any
    discriminatory activity in their operations as a way to
    break the circuit of imputed liability. Ibid.; see also Brief
    for Petitioner 24–28, and nn. 31–35 (citing studies demon
    Cite as: 555 U. S. ____ (2009)            7
    Opinion of the Court
    strating that Ellerth and Faragher have prompted many
    employers to adopt or strengthen procedures for investi
    gating, preventing, and correcting discriminatory con
    duct). The possibility that an employer might someday
    want to fire someone who might charge discrimination
    traceable to an internal investigation does not strike us as
    likely to diminish the attraction of an Ellerth-Faragher
    affirmative defense.
    That aside, we find it hard to see why the Sixth Circuit’s
    rule would not itself largely undermine the Ellerth-
    Faragher scheme, along with the statute’s “ ‘primary objec
    tive’ ” of “avoid[ing] harm” to employees. Faragher, 
    supra, at 806
     (quoting Albemarle Paper Co. v. Moody, 
    422 U. S. 405
    , 417 (1975)). If it were clear law that an employee
    who reported discrimination in answering an employer’s
    questions could be penalized with no remedy, prudent
    employees would have a good reason to keep quiet about
    Title VII offenses against themselves or against others.
    This is no imaginary horrible given the documented indi
    cations that “[f]ear of retaliation is the leading reason why
    people stay silent instead of voicing their concerns about
    bias and discrimination.” Brake, Retaliation, 
    90 Minn. L. Rev. 18
    , 20 (2005); see also id., at 37, and n. 58 (compil
    ing studies). The appeals court’s rule would thus create a
    real dilemma for any knowledgeable employee in a hostile
    work environment if the boss took steps to assure a de
    fense under our cases. If the employee reported discrimi
    nation in response to the enquiries, the employer might
    well be free to penalize her for speaking up. But if she
    kept quiet about the discrimination and later filed a Title
    VII claim, the employer might well escape liability, argu
    ing that it “exercised reasonable care to prevent and cor
    rect [any discrimination] promptly” but “the plaintiff
    employee unreasonably failed to take advantage of . . .
    preventive or corrective opportunities provided by the
    employer.” Ellerth, supra, at 765. Nothing in the statute’s
    8       CRAWFORD v. METROPOLITAN GOVERNMENT OF
    NASHVILLE AND DAVIDSON CTY.
    Opinion of the Court
    text or our precedent supports this catch-22.3
    Because Crawford’s conduct is covered by the opposition
    clause, we do not reach her argument that the Sixth Cir
    cuit misread the participation clause as well. But that
    does not mean the end of this case, for Metro’s motion for
    summary judgment raised several defenses to the retalia
    tion charge besides the scope of the two clauses; the Dis
    trict Court never reached these others owing to its ruling
    on the elements of retaliation, and they remain open on
    remand.
    III
    The judgment of the Court of Appeals for the Sixth
    Circuit is reversed, and the case is remanded for further
    proceedings consistent with this opinion.
    It is so ordered.
    ——————
    3 Metro also argues that “[r]equiring the employee to actually initiate
    a complaint . . . conforms with the employee’s ‘obligation of reasonable
    care to avoid harm’ articulated in Faragher and Ellerth.” Brief for
    Respondent 28 (quoting Faragher v. Boca Raton, 
    524 U. S. 775
    , 807
    (1998)). But that mitigation requirement only applies to employees
    who are suffering discrimination and have the opportunity to fix it by
    “tak[ing] advantage of any preventive or corrective opportunities
    provided by the employer,” ibid.; it is based on the general principle
    “that a victim has a duty ‘to use such means as are reasonable under
    the circumstances to avoid or minimize . . . damages,’ ” 
    id., at 806
    (quoting Ford Motor Co. v. EEOC, 
    458 U. S. 219
    , 231, n. 15 (1982)). We
    have never suggested that employees have a legal obligation to report
    discrimination against others to their employer on their own initiative,
    let alone lose statutory protection by failing to speak. Extending the
    mitigation requirement so far would make no sense; employees will
    often face retaliation not for opposing discrimination they themselves
    face, but for reporting discrimination suffered by others. Thus, they are
    not “victims” of anything until they are retaliated against, and it would
    be absurd to require them to “mitigate” damages they may be unaware
    they will suffer.
    Cite as: 555 U. S. ____ (2009)           1
    ALITO, J., concurring in judgment
    SUPREME COURT OF THE UNITED STATES
    _________________
    No. 06–1595
    _________________
    VICKY S. CRAWFORD, PETITIONER v. METRO-
    POLITAN GOVERNMENT OF NASHVILLE
    AND DAVIDSON COUNTY, TENNESSEE
    ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
    APPEALS FOR THE SIXTH CIRCUIT
    [January 26, 2009]
    JUSTICE ALITO, with whom JUSTICE THOMAS joins,
    concurring in the judgment.
    The question in this case is whether Title VII of the
    Civil Rights Act of 1964, 
    78 Stat. 253
    , as amended, 42
    U. S. C. §2000e et seq. (2000 ed. and Supp. V), prohibits
    retaliation against an employee who testifies in an inter
    nal investigation of alleged sexual harassment. I agree
    with the Court that the “opposition clause” of §2000e–3(a)
    (2000 ed.) prohibits retaliation for such conduct. I also
    agree with the Court’s primary reasoning, which is based
    on “the point argued by the Government and explained by
    an EEOC guideline: ‘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.’ ” Ante, at 4. I write separately to emphasize
    my understanding that the Court’s holding does not
    and should not extend beyond employees who testify in
    internal investigations or engage in analogous purposive
    conduct.
    As the Court concludes, the term “oppose” does not
    denote conduct that necessarily rises to the level required
    by the Sixth Circuit—i.e., conduct that is “ ‘consistent’ ”
    and “instigated or initiated” by the employee. 
    211 Fed. 2
          CRAWFORD v. METROPOLITAN GOVERNMENT OF
    NASHVILLE AND DAVIDSON CTY.
    ALITO, J., concurring in judgment
    Appx. 373, 376 (2006). The primary definitions of the
    term “oppose” do, however, require conduct that is active
    and purposive. See Webster’s New International Diction
    ary 1709–1710 (2d ed. 1953); Random House Dictionary of
    the English Language 1010 (1966) (hereinafter Random
    Dict.); 10 Oxford English Dictionary 866–867 (2d ed.
    1989). For example, the first three definitions of the term
    in the dictionary upon which the Court principally relies
    are as follows:
    “1. to act against or provide resistance to; combat. 2.
    to stand in the way of; hinder; obstruct. 3. to set as an
    opponent or adversary.” Random Dict. 1359 (2d ed.
    1987).
    In accordance with these definitions, petitioner contends
    that the statutory term “oppose” means “taking action
    (including making a statement) to end, prevent, redress,
    or correct unlawful discrimination.” Brief for Petitioner
    40.
    In order to decide the question that is before us, we have
    no need to adopt a definition of the term “oppose” that is
    broader than the definition that petitioner advances. But
    in dicta, the Court notes that the fourth listed definition in
    the Random House Dictionary of the English Language
    goes further, defining “oppose” to mean “ ‘to be hostile or
    adverse to, as in opinion.’ ” Ante, at 4 (emphasis added).
    Thus, this definition embraces silent opposition.
    While this is certainly an accepted usage of the term
    “oppose,” the term is not always used in this sense, and it
    is questionable whether silent opposition is covered by the
    opposition clause of 42 U. S. C. §2000e–3(a). It is notewor
    thy that all of the other conduct protected by this provi
    sion—making a charge, testifying, or assisting or partici
    pating in an investigation, proceeding, or hearing—
    requires active and purposive conduct. “ ‘That several
    items in a list share an attribute counsels in favor of
    Cite as: 555 U. S. ____ (2009)            3
    ALITO, J., concurring in judgment
    interpreting the other items as possessing that attribute
    as well.’ ” S. D. Warren Co. v. Maine Bd. of Environmental
    Protection, 
    547 U. S. 370
    , 378 (2006) (quoting Beecham v.
    United States, 
    511 U. S. 368
    , 371 (1994)).
    An interpretation of the opposition clause that protects
    conduct that is not active and purposive would have im
    portant practical implications. It would open the door to
    retaliation claims by employees who never expressed a
    word of opposition to their employers. To be sure, in many
    cases, such employees would not be able to show that
    management was aware of their opposition and thus
    would not be able to show that their opposition caused the
    adverse actions at issue. But in other cases, such employ
    ees might well be able to create a genuine factual issue on
    the question of causation. Suppose, for example, that an
    employee alleges that he or she expressed opposition while
    informally chatting with a co-worker at the proverbial
    water cooler or in a workplace telephone conversation that
    was overheard by a co-worker. Or suppose that an em
    ployee alleges that such a conversation occurred after
    work at a restaurant or tavern frequented by co-workers
    or at a neighborhood picnic attended by a friend or relative
    of a supervisor.
    Some courts hold that an employee asserting a retalia
    tion claim can prove causation simply by showing that the
    adverse employment action occurred within a short time
    after the protected conduct. See, e.g., Clark County School
    Dist. v. Breeden, 
    532 U. S. 268
    , 273 (2001) (per curiam)
    (noting that some cases “accept mere temporal proximity
    between an employer’s knowledge of protected activity and
    an adverse employment action as sufficient evidence of
    causality to establish a prima facie case”); see also
    Gorman-Bakos v. Cornell Cooperative Extension of
    Schenectady Cty., 
    252 F. 3d 545
    , 554 (CA2 2001); Conner
    v. Schnuk Markets, Inc., 
    121 F. 3d 1390
    , 1395 (CA10
    1997); Dey v. Colt Constr. & Dev. Co., 
    28 F. 3d 1446
    , 1458
    4     CRAWFORD v. METROPOLITAN GOVERNMENT OF
    NASHVILLE AND DAVIDSON CTY.
    ALITO, J., concurring in judgment
    (CA7 1994). As a result, an employee claiming retaliation
    may be able to establish causation simply by showing that,
    within some time period prior to the adverse action, the
    employer, by some indirect means, became aware of the
    views that the employee had expressed. Where the pro
    tected conduct consisted of a private conversation, applica
    tion of this rule would be especially problematic because of
    uncertainty regarding the point in time when the em
    ployer became aware of the employee’s private expressions
    of disapproval.
    The number of retaliation claims filed with the EEOC
    has proliferated in recent years. See U. S. Equal Em
    ployment Opportunity Commission, Charge Statistics:
    FY 1997 Through FY 2007, http://www.eeoc.gov/stats/
    charges.html; Charge Statistics: FY 1992 Through FY
    1996, http://www.eeoc.gov/stats/charges-a.html (as visited
    Jan. 16, 2009, and available in Clerk of Court’s case file)
    (showing that retaliation charges filed with the EEOC
    doubled between 1992 and 2007). An expansive interpre
    tation of protected opposition conduct would likely cause
    this trend to accelerate.
    The question whether the opposition clause shields
    employees who do not communicate their views to their
    employers through purposive conduct is not before us in
    this case; the answer to that question is far from clear;
    and I do not understand the Court’s holding to reach that
    issue here. For present purposes, it is enough to hold that
    the opposition clause does protect an employee, like peti
    tioner, who testifies about unlawful conduct in an internal
    investigation.
    

Document Info

Docket Number: 06-1595

Citation Numbers: 172 L. Ed. 2d 650, 129 S. Ct. 846, 555 U.S. 271, 2009 U.S. LEXIS 870

Judges: Alito, Kennedy, Roberts, Scalia, Souter, Stevens

Filed Date: 1/26/2009

Precedential Status: Precedential

Modified Date: 8/3/2023

Authorities (14)

lynn-gorman-bakos-and-rodney-bakos-plaintiffs-appellants-cross-appellees , 252 F.3d 545 ( 2001 )

Anne Dey v. Colt Construction & Development Company , 28 F.3d 1446 ( 1994 )

Mary Pat McDonnell and Thomas W. Boockmeier v. Henry G. ... , 84 F.3d 256 ( 1996 )

United States v. Detroit Timber & Lumber Co. , 26 S. Ct. 282 ( 1906 )

Perrin v. United States , 100 S. Ct. 311 ( 1979 )

Albemarle Paper Co. v. Moody , 95 S. Ct. 2362 ( 1975 )

Ford Motor Co. v. Equal Employment Opportunity Commission , 102 S. Ct. 3057 ( 1982 )

Beecham v. United States , 114 S. Ct. 1669 ( 1994 )

Bragdon v. Abbott , 118 S. Ct. 2196 ( 1998 )

Burlington Industries, Inc. v. Ellerth , 118 S. Ct. 2257 ( 1998 )

Faragher v. City of Boca Raton , 118 S. Ct. 2275 ( 1998 )

Clark County School District v. Breeden , 121 S. Ct. 1508 ( 2001 )

Brosseau v. Haugen , 125 S. Ct. 596 ( 2004 )

S. D. Warren Co. v. Maine Board of Environmental Protection , 126 S. Ct. 1843 ( 2006 )

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