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Supreme Court hears oral argument in retaliation case
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The Supreme Court heard oral argument last week in an important case about employment discrimination. The case is Crawford v. Metropolitan Government of Nashville. The employee, Ms. Crawford, had cooperated with Metro’s internal investigation into allegations of harassment of a fellow employee by a supervisor. Crawford related details of that supervisor’s sexually harassing conduct toward her (Crawford) and her reactions to it. The Supreme Court is deciding whether an employer can fire an mployee for reporting this kind of information in an internal investigation or whether that would be retaliation under Title VII. The anti-retaliation provision makes it illegal for an employer to retaliate against an employee who “has opposed any practice made an unlawful employment practice by this subchapter,” or who has “participated in any manner in an investigation, proceeding, or hearing under this subchapter”. The analysis that follows is based on my reading of the oral argument transcript in Crawford.
Ms. Crawford's attorney argued that her conduct in cooperating with the investigation and in rejecting the supervisor's behavior were opposition to discrimination. He further argued that participation in this internal investigation was covered by the law. The court Justices pushed heavily into hypothetical questions about what conduct would be sufficient to “oppose” discrimination. The Justices were also very concerned that only people whose statements were on the side of the complaining employee would be protected if the Court analyzed this issue under the opposition clause alone. To which counsel for Crawford replied that the protections in the opposition and participation clauses were meant to overlap and complement each other – concentric circles of protection in Chief Justice Roberts’ terms.
The United States appeared as amicus curiae on the side of the employee, and counsel for the Government agreed that the conduct was protected under both clauses.
One of the main issues addressed by counsel for the Government and counsel for Metro was the relationship between this potential protection under the participation clause and a defense in sexual harassment cases based on policies that prohibit harassment. The question comes down to this: The statute as it’s interpreted now encourages employers to prevent and remedy discrimination, particularly sexual harassment, by adopting policies, enforcing them, and investigating allegations of sexual harassment thoroughly; so, what will happen if we include this investigation under the participation clause?
On the one hand, it might discourage employers from doing investigations at all because every person who participates will be a potential plaintiff if later discharged. But if employers don’t do the investigation, they're much more likely to be liable for sexual harassment. In other words, employers are exposed to serious liability either way. On the other hand, if employees aren’t protected in internal investigations, they won’t cooperate, and the investigation won’t be effective to actually discover and prevent or remedy discrimination. The shield remains for the employer, but the purpose of the defense, for employers to internalize the goals of the law and self-enforce, is gutted. Additionally, any kind of enforcement of the act will be undermined because employees will be deterred further from revealing discriminatory conduct to the employer, which may even chill them from asserting their rights or filing charges with the EEOC at all.
Finally, in addition to the participation clause argument, counsel for Metro argued that opposition required some kind of attempt to stop the conduct, and not just a response like this was to employer questions. The person would need to put the employer on notice in an effort to get the conduct to stop before the conduct could be termed “opposition.” That argument was met with some tough questioning by the Justices.
A good chunk of the argument wasn't about the statute much at all, but focused instead on the costs of litigation to employers. Early on in the argument came these comments:
JUSTICE SCALIA: But that doesn't solve the problem of having too broad an entry into this thing. You get to the jury by just showing that she said "Oh, if he did that, it's terrible," and then it's up to the jury all of a sudden whether that is the reason that the employer fired this person or not. I mean, that just leaves -- lays the employer open to a lot of jury determinations that he shouldn't be subject to, it seems to me.
And Scalia was not alone:
JUSTICE SOUTER: Then what is the limit? It seems to me you've got a cause of action in effect under the statute that would be virtually unlimited. . . .
Poor Justice Ginsburg had to rein everybody back in:
JUSTICE GINSBURG: But why are we -- why are we spending so much time on hypotheticals that are so far from this case? This was a person who appeared at an internal proceeding, she gave testimony, very specific testimony. She wasn't saying: I'm against harassment. She said: This boss harassed me. It is about as specific as you get. So we're dealing with a particular case of somebody who was a witness in an internal investigation. Why do we have to reach the outer boundaries of this claim in this case?
At the end of the argument, came this discussion:
CHIEF JUSTICE ROBERTS: My point is simply that the incentive system is skewed because if you lose you pay not only your attorneys' fees but the complainants'. If you win, you have to incur yours. . . . I'm not saying it shouldn't be. But in terms of the pressures towards settlement, it is a very strong incentive.
JUSTICE STEVENS: Is bringing frivolous cases cost-free for the plaintiffs? There are certain costs.
MR. YOUNG: Well, Your Honor, many of these types of cases are taken on a contingent fee basis except for hard costs.
JUSTICE BREYER: It is a mix. I mean, you know, a lot of plaintiffs might be afraid to bring these cases because they'll be accused of doing all kinds of bad things. They don't want their reputations ruined. They have lawyers who take contingent fees because they have to pay for it. Oh the other hand, you have problems with your costs and you have problems dismissing people who should be dismissed. Everybody has problems in this area. That's why we have law and lawyers. They try to minimize it. This doesn't seem fruitful to me.
JUSTICE SCALIA: Isn't it true that financially it is always cost-free for the plaintiff because she has an attorney who is taking it on a contingent basis? Now, you could say it's not cost-free to the lawyer; but even that's not always true because if the lawyer has nothing else to do he may as well be doing this, you know, whatever the odds are.
MR. YOUNG: I agree with that, Your Honor.
This is very much a policy-driven case. There are some statutory interpretation issues that could drive the analysis, particularly what “opposition” means as a practice, and what “an investigation under this subchapter” includes. But really, what’s at stake are fundamental policies about enforcing Title VII, harnessing informal employer processes to do so, and the role of litigation in enforcement and its cost to businesses.The Court may find Crawford's conduct to satisfy the opposition clause, limit the holding to these facts – where the person reports conduct that he or she experienced which would probably have violated Title VII – and not open any real floodgates. Alternatively, this could go the way of Ledbetter v. Goodyear Tire, where the Court held that a very short statute of limitations applied to claims of discrimination in pay, a decision which many have argued protects employers (and the courts) from litigation at the cost of reducing the enforcement of Title VII.
Ultimately for me personally, the most worrisome exchange in the argument is the discussion of how costless litigation is for employees and how easy at least Justice Scalia thinks it is to get attorneys to take frivolous Title VII cases. First, employees risk retaliation, firing, and being blackballed by other employers for coming forward with a discrimination claim. That's hardly costless. And attorneys can't afford to take frivolous cases. As the attorney noted, these are cases in which the attorneys are working under a contingent fee arrangement. You can imagine how hard it might be for a person who has been fired to pay for the attorney's time up front. But attorneys have to make money too. They can't afford to take cases or spend any time on matters that aren't going to provide any income. There is plenty of work that will provide the income that very, very few attorneys take frivolous cases, or even cases that have merit but would be hard to win. There's a market restraint that limits the danger of those floodgates. Scalia of all people should understand that.
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