Drew Capuder’s Employment Law Blog

1/26/09: In Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, 129 S. Ct. 846 (2009), the US Supreme Court unanimously ruled that an employee engaged in protected activity under Title VII’s retaliation provision by answering an employer’s questions in connection with a sexual harassment investigation started by company rumors about a male supervisor. Justice Souter wrote the majority opinion, joined by Roberts, Stevens, Scalia, Kennedy, Ginsburg, and Breyer. Justice Alito wrote an opinion, concurring in the judgment, joined by Justice Thomas.

Ms. Crawford Responds to an Investigation into Sexual Harassment

Here is what happened: Rumors started circulating about sexually inappropriate behavior by a male supervisor, Gene Hughes, at “Metropolitan Government of Nashville and Davidson County” (“Metro”). A human resources employee started investigating, and asked Vicky Crawford whether she had seen any inappropriate behavior by Mr. Hughes. Crawford responded yes, and described several instances of sexually inappropriate behavior. For example, Ms. Crawford had asked Mr. Hughes “what’s up”, and he responded by grabbing his crotch and saying “you know what’s up”. On another occasion, Mr. Hughes grabbed Ms. Crawford’s head and pulled it toward his crotch. The human resources employee talked to two other employees who similarly reported sexually harassing behavior from Mr. Hughes.

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5-27-08: The US Supreme Court in Gomez-Perez v. Potter, 128 S. Ct. 1931 (2008) ruled that the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq., prohibited retaliation against federal employees who had complained about age discrimination, even though the federal employee section of the ADEA did not expressly prohibit retaliation. This was a 6-3 decision. The majority opinion was written by Justice Alito, in which Justices Stevens, Kennedy, Souter, Ginsburg, and Brewer joined. Justices Roberts, Scalia, and Thomas dissented, with dissenting opinions being written by Justices Roberts and Thomas.

The Gap In the Federal Employee Section of the ADEA

This was the problem under the ADEA: The ADEA’s main section, in prohibiting discrimination against employees 40 and older, only deals with private industry employees and state government employees. I will call this section of the ADEA, the “private and state employee sections”.

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June 22, 2006: In Burlington Northern & Sante Fe Railway Co. v. White, 548 U.S. 53 (2006) (“Burlington Northern v. White”), the US Supreme Court substantially broadened the ability of employees to file retaliation claims under Title VII of the Civil Rights Act of 1964. It was a unanimous (9-0) decision.

The Supreme Court broadened retaliation claims in 2 ways:

First: Retaliatory conduct is not limited to employer’s action at the workplace, and it is not limited to action taken while the plaintiff is still working for the employer.

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