Opposing Sexual Harassment

January 27, 2009

The United States Supreme Court clarified what it means to “oppose” sexual harassment.  in Crawford v. Metropolitan of Nashville and Davidson County, Tennessee, Crawford was asked questions during a sexual harassment investigation. In response to questions from the interviewer, Crawford said that the employee relations director had sexually harassed her.  No action was taken against the director, but Crawford soon found herself accused of embezzlement and fired.

Crawford sued aleging her employer retaliated against her for opposing sexual harassment in violation of Title VII.  The trial court and appellate court held that Crawford did not state a cause of action because her responses to questions was not an affirmative opposition of sexual harassment.  In essence, the lower courts believed that the opposition clause demanded “active, consistent” opposing activities, whereas the plaintiff in this case had not initiated any complaint prior to the investigation.  The U.S. Supreme Court disagreed.

Noting that Title VII does not define “oppose,” the Supreme Court applied the ordinary common definition meaning of resisting or contending against.  The court found that intent of the statute’s anti-retaliation provision’s protection extends to an employee who speaks out about discrimination even if it is not done on the employee’s own initiative.

The ruling may broaden the scope of what some employers believed constituted a “complaint” about harassment.  Employers must be cognizant of the fact that any opposition to unlawful harassment or discrimination is protected.  When conducting a sexual harassment or discrimination investigation it is extremely important to remember that additional allegations of harassment, possibly even unrelated events, may be divulged and that such additional allegations may need to be addressed.  The underscores the need to have such investigations conducted by competent outside consultants.

And never retaliate against someone who has participated in a sexual harassment/discrimination investigation!

Sayar Fausto, LLP
350 Second St. Suite 5
Los Altos, CA 94022
Tel: (650) 948-6114
Fax: (650) 947-0770

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