Supreme Court Declares a Right to Sue for Retaliation in Sexual Harassment Cases

The Supreme Court has ruled, in what ought to be a no-brainer, that companies cannot fire their employees for cooperating in sexual harassment investigations, and that someone who is fired for this reason has the right to sue.

The case arose from an internal investigation into possible misconduct by Gene Hughes, the employee relations director of a Tennessee school system. Vicky Crawford, who had worked for the school system for 30 years but who had not complained about Mr. Hughes, answered questions about him in the investigation.

Justice David H. Souter, writing for himself and six other justices, said Ms. Crawford had described “louche goings-on” involving “gross clowning” and “sexually obnoxious” conduct by Mr. Hughes. According to court papers summarizing her accusations, Mr. Hughes seemed to think it amusing to grab his genitals and ask Ms. Crawford to show him her breasts.

At the conclusion of the investigation, Mr. Hughes received an oral reprimand. Ms. Crawford and two other women who had made accusations against him were fired. In Ms. Crawford’s case, the reason was said to be embezzlement, a charge she denied and which the authorities did not pursue.

The question in the case, Crawford v. Metropolitan Government of Nashville and Davidson County, Tenn., No. 06-1595, was whether Ms. Crawford could sue under a provision of Title VII of the Civil Rights Act of 1964 barring retaliation against people who opposed unlawful employment practices. In 2006, the United States Court of Appeals for the Sixth Circuit, in Cincinnati, dismissed the case before trial, saying the law requires more vigorous opposition than merely answering questions in an internal investigation.

In his opinion reversing that decision, Justice Souter said that lesser forms of opposition count, too. “Countless people were known to ‘oppose’ slavery before emancipation, or are said to ‘oppose’ capital punishment today,” he wrote, “without writing public letters, taking to the streets or resisting the government.”

What kind of opposition the previous court was seeking, of course, is unclear.  But what is clear is that the Supreme Court made the right decision, and Souter’s reasoning is accurate — even if it does not rely on arguments pertaining to gender equality or an inherent right to freedom from sexual harassment.  Amazingly, anti-discrimination laws actually apply to instances discrimination!  Who knew?

In all seriousness, this is an important ruling, and in the end it may be best that the main argument in the decision seemingly doesn’t rest on the issue sexual harassment itself.  That means it can be more easily applied to a wider range of discrimination cases, which are based on other factors for both women and other minority groups.

In one final note, you have to love this argument made on behalf of Ms. Crawford’s former employer:

Justice Souter rejected the employer’s argument that ruling in favor of Ms. Crawford would result in fewer investigations. But he said that employees who knew they were subject to firing without recourse if they answered questions from their employer honestly would be less likely to cooperate.

As Marcella notes, you might as well just come out and say that you have no interest in actually enforcing your sexual harassment policy, and in fact have only an interest in half-assed efforts to make it seem like you are.  There’s  no need to mince words when you’re pretty much there, anyway.

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