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No. 06-1595

 

In the Supreme Court of the United States

VICKY S. CRAWFORD, PETITIONER

v.

METROPOLITAN GOVERNMENT OF NASHVILLE
AND DAVIDSON COUNTY, TENNESSEE

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE

 

PAUL D. CLEMENT
Solicitor General
Counsel of Record
GRACE CHUNG BECKER
Acting Assistant Attorney
General
GREGORY G. GARRE
Deputy Solicitor General
LISA S. BLATT
Assistant to the Solicitor
General
DENNIS J. DIMSEY

ANGELA M. MILLER

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

RONALD S. COOPER
General Counsel
LORRAINE C. DAVIS
Acting Associate General
Counsel
CAROLYN L. WHEELER
Assistant General Counsel
JENNIFER S. GOLDSTEIN
Attorney
Equal Employment
Opportunity Commission
Washington, D.C. 20507

QUESTION PRESENTED

Whether, or to what extent, Title VII's anti-retalia tion provision, Section 704(a) of the 1964 Civil Rights Act, 42 U.S.C. 2000e-3(a), protects an employee from being dismissed because she cooperated with her em ployer's internal investigation of sexual harassment.

In the Supreme Court of the United States

No. 06-1595

VICKY S. CRAWFORD, PETITIONER

v.

METROPOLITAN GOVERNMENT OF NASHVILLE
AND DAVIDSON COUNTY, TENNESSEE

 

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE

 

This brief is submitted in response to this Court's invitation to the Solicitor General to express the views of the United States. In the view of the United States, the petition for a writ of certiorari should be granted.

STATEMENT

1. Petitioner worked as a payroll coordinator for respondent for over 30 years. In the fall of 2001, respon dent hired Dr. Gene Hughes as the Metro School Dis trict's employee relations director. Pet. App. 4a, 13a. In 2002, respondent, in accordance with its formal anti-harassment policy, initiated an internal investigation into Hughes's conduct after a lawyer in respondent's Legal Department learned that several employees had "expressed concern about specific incidents of inappro priate behavior by Hughes." Id. at 4a.

The assistant director of human resources, Veronica Frazier, was assigned to investigate the allegations. Pet. App. 4a-5a. As part of respondent's investigation, Frazier interviewed several employees who worked with Hughes, including petitioner. Id. at 5a, 13a. Petitioner informed Frazier that Hughes had sexually harassed her and other employees. Specifically, petitioner re ported that Hughes "had asked to see her titties on nu merous occasions"; grabbed his genitals; "put his crotch up to [her] window"; and, once "came into her office * * * and he grabbed her head and pulled it to his crotch." Id. at 5a n.1.

The investigation did not result in any disciplinary action against Hughes. However, respondent subse quently fired petitioner, along with two other employees who alleged during the investigation that Hughes en gaged in sexually harassing behavior. Pet. App. 5a. Respondent purportedly fired petitioner after accusing her of embezzlement and drug use but, according to pe titioner, those accusations were unfounded. Id. at 5a-6a.

2. After filing a charge with the Equal Employment Opportunity Commission (EEOC), petitioner filed the instant suit, alleging that respondent violated Title VII by firing her because she disclosed Hughes's sexually harassing behavior during the internal investigation. Pet. App. 13a. The district court granted summary judgment in favor of respondent on the ground that peti tioner's participation in the internal investigation of Hughes was not conduct covered by Title VII's anti-retaliation provision, Section 704(a), 42 U.S.C. 2000e- 3(a). That provision makes it "an unlawful employment practice for an employer to discriminate against any of his employees * * * [1] because [the employee] 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 man ner in an investigation, proceeding, or hearing under this subchapter." Ibid. The first of the numbered clauses is known as the "opposition clause" and the sec ond as "the participation clause."

Relying on Sixth Circuit precedent, the district court concluded that petitioner's participation in her em ployer's investigation did not fall within Title VII's par ticipation clause because respondent's investigation was not conducted pursuant to a pending EEOC charge. Pet. App. 15a (citing Abbott v. Crown Motor Co., Inc., 348 F.3d 537, 543 (6th Cir. 2003)). The district court further held that petitioner's involvement in the internal investigation did not constitute opposition to an unlaw ful employment practice, because she "merely answered questions by investigators in an already-pending inter nal investigation, initiated by someone else." Id. at 16a. Because there was no allegation that petitioner "insti gated or initiated any complaint," the district court con cluded, petitioner's activity was not opposition within the meaning of Section 704(a). Id. at 16a-17a.

3. The court of appeals affirmed in an unpublished decision. Pet. App. 3a-10a. The Sixth Circuit concluded that petitioner's actions were not protected under Sec tion 704(a)'s opposition clause. In so holding, the court stated that "[t]he general idea is that Title VII 'demands active, consistent "Opposing" activities to warrant * * * protection against retaliation.'" Id. at 7a (quot ing Bell v. Safety Grooving & Grinding, LP, 107 Fed. Appx. 607, 610 (6th Cir. 2004) and citing Johnson v. University of Cincinnati, 215 F.3d 561, 579 (6th Cir.), cert. denied, 531 U.S. 1052 (2000)). The court further reasoned that petitioner's actions in "relating unfavor able information about Hughes" during the investigation did not qualify as "overt opposition" protected under the statute because petitioner "does not claim to have insti gated or initiated any complaint prior to her participa tion in the investigation, nor did she take any further action following the investigation and prior to her fir ing." Id. at 7a-8a.

The court of appeals also held that petitioner's ac tions were not protected under Section 704(a)'s partici pation clause. Pet. App. 8a. The court reasoned that Title VII protects an employee's participation in an em ployer's internal investigation into allegations of unlaw ful discrimination only when that investigation occurs pursuant to a pending EEOC charge. Ibid. In this case, the court explained, "no EEOC charge had been filed at the time of the investigation or prior to her filing." Ibid.

4. Petitioner sought panel and en banc rehearing, which was denied. Pet. App. 1a-2a.

DISCUSSION

Petitioner's disclosure of discriminatory acts during respondent's internal investigation into possible sexual harassment in the workplace was protected activity un der Section 704(a). The court of appeals therefore erred in holding that neither clause of Section 704(a) protected petitioner. The court of appeals' construction of Section 704(a) creates an unjustified gap in Title VII's protec tion against retaliation. Internal investigations are an integral aspect of Title VII and there is no reason to leave cooperating witnesses unprotected. The Sixth Cir cuit's rule is not only at odds with the text of Section 704(a) but with its object and the EEOC's guidance ma terials.

The court of appeals' decision is out of step with the precedent in other circuits, but does not squarely con flict with other circuit precedents. Nevertheless, even in the absence of a square conflict, the question presen ted is of sufficient importance to the effective enforce ment of Title VII to warrant resolution by this Court. In particular, the court of appeals' failure to protect em ployees in internal investigations that precede formal complaints raises significant concerns in light of this Court's decisions in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Kolstad v. American Dental Ass'n, 527 U.S. 526 (1999), which impose an affirmative duty on employers routinely to investigate allegations of sexual harassment to avoid liability or limit damages un der Title VII.

Although the unpublished nature of the decision be low counsels against plenary review, the court of appeals grounded its construction of Section 704(a) in prior cir cuit precedent in published cases, establishing general ramifications for interpreting Section 704(a), which the court in this case and in a previous unpublished case viewed as controlling in this specific context. In addi tion, notwithstanding that it is unpublished, the court of appeals' decision creates an inexplicable enforcement gap in Title VII for employees in the Sixth Circuit and threatens to compromise employer investigations into potential discriminatory conduct by removing a protec tion designed to ensure that employees will not fear re prisals for cooperating in such investigations, to the det riment of employers seeking to uncover wrongdoing as well as employees subject to such wrongdoing.

A. The Court Of Appeals Erred In Holding That Peti tioner's Conduct Was Not Protected Activity Under Title VII's Anti-Retaliation Provision

1. The court of appeals erred in finding that Section 704(a) did not protect petitioner against retaliation for adverse testimony in an internal investigation that pre- dated any filing of an EEOC charge. The United States takes the view that petitioner is protected by both the opposition and participation clauses of Section 704(a). But it makes no sense to conclude, as the court of ap peals did, that petitioner is not protected by either clause. A cooperating witness, no less than an employee who initiates a complaint, needs protection against retal iation for providing candid information to the employer during an internal investigation.

Internal investigations, by virtue of this Court's deci sions, are an integral part of Title VII's enforcement scheme. Recovery by employees and liability for em ployers can turn on the existence of the adoption of in ternal complaint policies and the extent to which the employee avails herself of such procedures. Thus, inter nal procedures can only play the role that the Court en visioned if employees who give candid testimony are protected against retaliation. The need for protection does not turn on whether an EEOC charge has been filed at the point the witness testifies. The court of ap peals' ruling thus creates an inexplicable gap in Title VII's protection against retaliation that this Court should correct.

2. Section 704(a) protects employees from retaliation because he has "opposed" an unlawful employment prac tice. 42 U.S.C. 2000e-3(a). The plain meaning of the word "oppose" is "to be hostile or adverse to, as in opin ion." Random House Dictionary of the English Lan guage 1359 (2d ed. 1987); American Heritage Dictio nary 872 (1982) ("[t]o be in contention or conflict with" or "[t]o be resistant to"). When an employee communi cates to her employer a belief that the employer has en gaged in activity that constitutes a form of employment discrimination, that communication reasonably carries with it the employee's opposition to the activity. See 2 EEOC Compl. Man. (BNA) § 8-II(B)(1), at 614:0003 (Mar. 2003) (opposition clause "applies if an individual explicitly or implicitly communicates to his or her em ployer or other covered entity a belief that its activity constitutes a form of employment discrimination"); id. § 8-II(B)(2), at 614:0003 (protected opposition occurs when a "complaint would reasonably [be] interpreted as opposition to employment discrimination"). An em ployee's disclosure of unlawful activity in response to the employer's investigation to root out unlawful activity is naturally viewed as opposition to that activity, be cause no reasonable employee welcomes discrimination in the workplace, especially when it is directed at the employee herself.

This case well illustrates the point. Respondent initi ated an investigation after several employees expressed concern about sexual harassment by Hughes. Pet. App. 4a. Petitioner was interviewed as part of that investiga tion, and was asked in the investigation to report "any inappropriate behavior by Mr. Hughes." C.A. App. 46 (Dep. of Vicki Crawford) (emphasis added); accord id. at 47. Petitioner then reported that she had "felt very un comfortable around Mr. Hughes" because he "would grab himself" whenever she would speak to him. Id. at 44 (emphasis added). Petitioner also reported that Hughes would respond to her question of "what's up?" by grabbing his crotch and saying "you know what's up," id. at 45; that he would knock on the window to her of fice and would press his crotch to the window," ibid.; that at times, "he would come to my window * * * and would say, "Let me see your titties," ibid.; and that he once walked into her office, and when she asked how could she help him, "he grabbed her head and pulled it to his crotch." Pet. App. 5a n.1.

Petitioner's disclosure during the interview of such reprehensible conduct unmistakably communicated her opposition to Hughes's conduct. After recounting such graphic and obviously inappropriate acts against her in response to a request to report inappropriate behavior, petitioner was not required to make explicit that she opposed such conduct before coming within Section 704(a)'s protection. The nature of the conduct des cribed and the setting of the internal investigation suf ficed to register petitioner's opposition to the conduct. Indeed, petitioner reasonably believed that by reporting Hughes's misconduct during a formal investigation, she had "testified against" Hughes. C.A. App. 47; accord Pet. App. 5a ("According to petitioner, she believed that she was exercising her rights under federal law when she informed Frazier of Hughes's actions."). And in any event, the Congress that passed Title VII would have assumed that employees who reported such misconduct opposed such misconduct. Petitioner's recital of specif ic instances of unlawful conduct by Hughes during the course of her employer's investigation was therefore protected activity under the opposition clause.

The court of appeals believed that the opposition clause "demands active, consistent 'Opposing' activities to warrant * * * protection against retaliation." Pet. App. 7a (quoting Bell, 107 Fed. Appx. at 610). But Sec tion 704(a) protects those who "oppose[]"; the terms "active" and "consistent" nowhere appear in the text of the statute. The court of appeals likewise engrafted an extra-textual gloss on the statute by holding that peti tioner was not covered by the opposition clause because respondent initiated the interview in which petitioner complained of Hughes's harassing conduct. Ibid. Whe ther an employee receives protection under Title VII's anti-retaliation provision does not depend on whether the employee initiated an interview-instead of cooper ating with an interview request-in which the employee complained of unlawful conduct. The statutory touch stone is opposition, not initiation.

Such a requirement would ignore the practical real ity that many employees do not initiate complaints of discrimination precisely because they fear retaliation. Enforcement Guidance on Vicarious Employer Liabil ity for Unlawful Harassment by Supervisors, 2 EEOC Compl. Man. (BNA) Pt. V(C)(1)(b) at 615:0108 n.59 (Oct. 2002) ("Surveys have shown that a common reason for failure to report harassment to management is fear of retaliation * * * [and] a significant proportion of ha rassment victims are worse off after complaining.") (ci tations omitted); see, e.g., C.A. App. 47 (petitioner's tes timony that "I felt afraid that if I testified against him * * * I would lose my job"). Thus, the relevant inquiry in this context is whether the employer reasonably should have understood that the employee was disclos ing an employment practice made unlawful by Title VII. 42 U.S.C. 2000e-3(a). 2 EEOC Compl. Man. (BNA) § 8- II(B)(2); accord EEOC Interpretive Manual, Reference Manual to Title VII Law for Compliance Personnel § 493.2 (1972) (individual protected from retaliation if "the circumstances surrounding the complaints were such that [the employer] knew or should have known that [the individual] was complaining about Title VII discrimination."). When that criteria is satisfied, Title VII protects the employee against retaliation.

For the same reasons, Section 704(a) does not re quire an employee to take "further action" in opposition beyond complaining about unlawful activity to an em ployer. Pet. App. 7a. Voicing opposition to an employer about suspected unlawful activity constitutes protected opposition, whether or not she has filed a formal or in formal complaint. See, e.g., Kotcher v. Rosa & Sullivan Appliance Ctr., Inc., 957 F.2d 59, 65 (2d Cir. 1992) (op position encompasses an individual's complaints to su pervisors regardless of whether she also files an EEOC charge); Pastran v. K-Mart Corp., 210 F.3d 1201, 1205 (10th Cir. 2000) (same); Rollins v. State of Fla. Dep't of Law Enforcement, 868 F.2d 397, 400 (11th Cir. 1989) (opposition clause protects "those * * * who informally voice complaints to their supervisors"); Armstrong v. Index Journal Co., 647 F.2d 441, 448 (4th Cir. 1981) (same). Here again, the statutory trigger is "opposi[tion]"; the statute does not require employees to take further action, such as filing a formal a complaint, in addition to expressing her opposition to discrimina tory conduct.

3. Although it presents a closer question, the court of appeals also erred when it held that Section 704(a)'s participation clause is limited to participation in an em ployer's internal investigation only when that investiga tion follows the filing of an EEOC charge. The text of the participation clause covers participation in "an in vestigation * * * under this subchapter." An employer-initiated investigation designed to detect or root out discrimination prohibited by Title VII is reason ably construed in these circumstances to be an investi gation "under" the statute.

No appellate decision has limited the phrase "inves tigation * * * under this subchapter" to EEOC investi gations. In addition, Congress elsewhere in Title VII used language making clear its intent to address only investigations conducted by the Commission. See 42 U.S.C. 2000e-5(b) ("the Commission * * * shall make an investigation" of a charge), 2000e-8 (access by Com mission "[i]n connection with any investigation of a charge"), and 2000e-9 (referring to "hearings and inves tigations conducted by the Commission or its duly au thorized agents or agencies"). The fact that Congress did not use such Commission-specific language in Sec tion 704(a) suggests that employer-initiated investiga tions into conduct proscribed by Title VII would be cov ered. The court of appeals did not attempt to limit the participation clause to EEOC's own investigations, but did limit protection to internal investigations that follow the filing of an EEOC charge. There is no basis for that temporal limitation.

When an employer conducts an internal investigation into whether a Title VII violation has occurred, before or after the filing of an EEOC charge, the employer acts in conformity with Title VII's central objective to pre vent and deter harm. See Faragher, 524 U.S. at 806 (Title VII's "'primary objective', like that of any statute meant to influence primary conduct, is not to provide redress but to avoid harm.") (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 417 (1975)); Ellerth, 524 U.S. at 764 ("Title VII is designed to encourage the [em ployer's] creation of antiharassment policies and effec tive grievance mechanisms."); Kolstad, 527 U.S. at 546 (recognizing "Title VII's objective of motivat[ing] em ployers to detect and deter Title VII violations"); accord McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 358 (1995).

A rule limiting protection against retaliation in pre- charge internal investigations is difficult to square with this Court's precedents interpreting Title VII to impose an affirmative duty on employers to investigate allega tions of sexual harassment to avoid liability under the statute. For example, this Court in Faragher and Ellerth held that an employer can assert an affirmative defense to avoid vicarious liability for its supervisor's unlawful employment actions that do not result in a tan gible employment action if (1) "the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior," and (2) "the plaintiff em ployee unreasonably failed to take advantage of any pre ventive or corrective opportunities provided by the em ployer." Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765. Likewise, in Kolstad, 527 U.S. at 545-546, the Court held that an employer could avoid punitive dam ages under Title VII by showing that the supervisor was acting contrary to the employer's good faith efforts to comply with Title VII.

An employer's investigation into allegations of con duct made unlawful by Title VII is a fundamental and indispensable component of an employer's good faith efforts to comply with Title VII through the develop ment and implementation of anti-harassment policies and complaint procedures. See Enforcement Guidance on Vicarious Employer Liability for Unlawful Harass ment by Supervisors, 2 EEOC Compl. Man. (BNA) Pt. V(C)(1), at 615:0107 (Oct. 2002) ("An anti-harassment policy and complaint procedure should contain, at a min imum * * * [a] complaint process that provides a prompt, thorough, and impartial investigation."). In light of the importance of the internal investigation pro cess to Title VII liability, it would make no sense to leave employees unprotected in that process. Employee cooperation is essential to making such internal investi gations effective, yet employee cooperation will hardly be forthcoming if employees are unprotected against retaliation in the event they provide unfavorable infor mation about their supervisors. Without such protec tion, employees will avoid negative comments about their supervisors and the internal investigation will be robbed of its value. Because employer-initiated investi gations attendant to an employer's anti-harassment poli cies and procedures are so integral to achievement of the statutory goals of promoting employer compliance and avoiding harm, and, because those internal investi gations will not perform the function envisioned by Faragher and Ellerth if the candor of cooperating em ployees is unprotected, such investigations are reason ably considered to be conducted pursuant to, and thus "under," Title VII.

In light of those principles, when respondent's legal department launched an investigation into Hughes's conduct, employees cooperating in that investigation were entitled to protection under the participation clause. Whether or not a victim of Hughes's conduct had filed a formal charge at the point of petitioner's inter view does not change the fact that the investigation was within the purview of Title VII. Indeed, if one of respon dent's employees sued respondent based on Hughes's conduct, respondent presumably would point to the in vestigation as part of its defense to vicarious liability. In such a case, respondent's defense under Faragher and Ellerth would not turn on whether the charge had been filed before petitioner's interview. Employers should not be permitted to use such an investigation as a shield to liability under Title VII but at the same time as a sword to bar employees from seeking relief if they are fired in retaliation for their participation in the same interview. Such a result would flout the purpose of Title VII to "prohibit[] employer actions that are likely 'to deter victims of discrimination from complaining to' * * * their employers." Burlington N. & Santa Fe Ry. v. White, 126 S. Ct. 2405, 2415 (2006) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997)).

Moreover, such an interpretation of Section 704(a) would lead to the perverse result that employers could use investigations under facially appropriate anti-ha rassment policies as a means of identifying and rooting out employees who have knowledge of discrimination in the workplace, as opposed to identifying and fostering action against those who discriminate. Indeed, in this case, the employer fired three of the witnesses (includ ing petitioner) who cooperated with the investigation, but ultimately allowed the subject of the investigation (Mr. Hughes) to remain in place. See p.2, supra.

For similar reasons, the court of appeals erred in concluding that protecting petitioner from retaliation under Section 704(a)'s participation clause would unjus tifiably burden employers who "proactively" launch an investigation before an EEOC charge is filed. Pet. App. 10a. As discussed, this Court's decisions require pro active efforts on the part of employers regardless of whether an employee has instituted formal proceedings with the EEOC arising out of the conduct under investi gation. In any event, employers have no legitimate in terest in retaliating against employees who disclose con duct made unlawful under Title VII, either before or after an EEOC charge is filed. And, consistent with this Court's decisions in Faragher and Ellerth, both employ ers and employees alike benefit from a system in which employees cooperate in internal investigations.

B. While There Is No Square Conflict, The Sixth Circuit's Decision Is An Outlier In The Circuits

1. The court of appeals' decision in this case is out of step with the decisions of other circuits on the scope of Section 704(a) and creates an inexplicable gap in the stat ute's prohibition against retaliation. No other circuit has adopted such a circumscribed interpretation of Sec tion 704(a). Nevertheless, the decision is unpublished and does not create a square conflict on either the oppo sition or participation clause issue.

A. Although the court of appeals' decision appears to be the only appellate decision holding that the opposi tion clause requires active, consistent, or overt opposi tion to receive protection under Section 704(a), that de cision does not squarely conflict with the decision of any other court of appeals.

In EEOC v. Total System Services, Inc., 221 F.3d 1171 (2000), the Eleventh Circuit assumed, for the sake of argument, that an employee's cooperation in the em ployer's internal investigation was protected activity under the opposition clause. But the court did not need to resolve the issue squarely because it concluded that the district court nonetheless properly granted sum mary judgment for the employer on the merits. Id. at 1175 ("But, even if her acts might otherwise have consti tuted protected expression under the opposition clause, the district court was correct in granting summary judg ment for Defendant."); accord EEOC v. Total Sys. Servs., 240 F.3d 899, 904 (11th Cir. 2001) (Edmonson, J. concurring) (observing that the panel's decision recog nized that a plaintiff who participates in an employer's internal investigation "might have protection" under the opposition clause).1

As petitioner points out (Pet. 15-20), there are deci sions in other circuits holding that complaints made dur ing an employer's internal investigation constituted pro tected activity covered by Section 704(a), but none of those decisions specifically addresses whether the oppo sition clause or participation clause covered the activity and, accordingly, those cases do not directly conflict with the Sixth Circuit's analysis of the two clauses. Moreover, perhaps because they do not focus specifically on the participation clause, those decisions do not make clear whether the employer's internal investigation was being conducted pursuant to a charge filed with the EEOC, in which case the conduct would be covered un der the participation clause even under the Sixth Cir cuit's approach. Cardenas v. Massey, 269 F.3d 251, 260, 263 (3d Cir. 2001); Evans v. City of Houston, 246 F.3d 344, 352-353 (5th Cir. 2001); Scott v. County of Ramsey, 180 F.3d 913, 916 (8th Cir. 1999). Accordingly, while those decisions are in substantial tension with the Sixth Circuit's decision, they do not squarely conflict with that decision.

Petitioner also relies on decisions (Pet. 15-17) in which the activity likely would have constituted opposi tion activity under the Sixth Circuit's stringent "active" opposition test. Thus, in Cardenas, 269 F.3d at 260, the plaintiff not only supported the discrimination com plaints of his co-workers but filed his own complaint alleging discrimination. In Kempcke v. Monsanto Co., 132 F.3d 442, 445 (8th Cir. 1998), the plaintiff gave argu ably incriminating documents to his attorney and told his employer if it wanted the documents returned it would have to deal with his attorney. And in Hoffman v. Rubin, 193 F.3d 959, 963 (8th Cir. 1999), the court as sumed, but did not hold, that the plaintiff's appearance on the show "60 Minutes" was oppositional activity. While the courts found that the employees were covered by Section 704(a) in those circumstances, those cases did not squarely address the more typical fact pattern here, in which an employee who has not yet filed an EEOC charge cooperates with an employer's investigation.

Petitioner also argues (Pet. 19-20) that the Seventh Circuit in McDonnell v. Cisneros, 84 F.3d 256 (1996), rejected the view that the opposition clause only pro tects "active" opposition. In McDonnell, the employee claimed he was being retaliated against for "failing to carry out his employer's desire that he prevent his sub ordinates from filing discrimination complaints." Id. at 262. The court concluded that the employee's failure to act amounted to "[p]assive resistance" but was nonethe less covered by the opposition clause. Ibid. In McDon nell, however, the Seventh Circuit did not confront whether an employee's cooperation with an internal in vestigation constitutes protected activity.

b. There is likewise no circuit conflict on the ques tion whether the participation clause requires the filing of an EEOC charge in order for an employer's internal investigation to constitute an "investigation * * * un der this subchapter." 42 U.S.C. 2000e-3(a). On this is sue, the Sixth Circuit's view is in line with the decisions of other circuits that likewise have concluded that the participation clause is triggered only after an EEOC charge has been filed. Abbott, 348 F.3d at 543; EEOC v. Total Sys. Serv., 221 F.3d at 1174 n.2; Byers v. Dallas Morning News, 209 F.3d 419, 428 (5th Cir. 2000); Brower v. Runyon, 178 F.3d 1002, 1006 (8th Cir. 1999); Vasconcelos v. Meese, 907 F.2d 111, 113 (9th Cir. 1990); Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1313 (6th Cir. 1989).

C. The Question Whether Petitioner Is Protected Under Title VII's Anti-Retaliation Provision Is An Important And Recurring Issue That Warrants This Court's Review

Although there is no square circuit conflict on the meaning of either Section 704(a)'s opposition clause or the participation clause, the question whether an em ployee in petitioner's circumstance is covered under Sec tion 704(a) is of core importance to the effective enforce ment of Title VII and of recurring significance. The decision below creates an inexplicable gap in Title VII's anti-retaliation provision. In light of the integral role internal investigations play in Title VII even before a charge is filed, it makes no sense to conclude that em ployees are protected by neither clause of Section 704(a). If the decision below is correct, there is every reason to think that Congress would want to act promptly to correct the anomaly. Accordingly, there is little reason to leave employees in the Sixth Circuit un protected while awaiting a square conflict, or a pub lished decision correcting the error in this case. More over, because the decision below squarely addressed both clauses, it presents a suitable vehicle to consider the question.

1. The court of appeals held that Title VII gives no protection to employees who are retaliated against for disclosing discriminatory conduct during employer-initi ated investigations, at least in the absence of an EEOC charge. That result imposes a significant and unwar ranted limitation on the types of conduct that Title VII is intended to protect. As this Court recently explained in White, 126 S. Ct. at 2412, the purpose of the anti-re taliation provision is to secure a discrimination-free workplace "by preventing an employer from interfering (through retaliation) with an employee's efforts to se cure or advance enforcement of [Title VII's] basic guar antees." Title VII thus "forbids discrimination against * * * employees for attempting to protest or correct allegedly discriminatory conditions of employment." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 796 (1973). This Court's precedents accordingly hold that Title VII should be interpreted to "assure * * * coop eration" from employees in achieving Title VII's objec tives. White, 126 S. Ct. at 2414.

Effective enforcement of Title VII's protections de pends "upon the cooperation of employees who are will ing to * * * act as witnesses" and who feel "free to approach officials with their grievances." White, 126 S. Ct. at 2414 (quoting Mitchell v. Robert DeMario Jew elry, Inc., 361 U.S. 288, 292 (1960)). In the absence of protection against retaliation, witnesses and victims would be understandably reluctant to participate in an investigation into unlawful conduct, which, in turn, would undermine Title VII's purpose to spur employers' efforts to deter and detect unlawful discrimination in the workplace. And the court of appeals' decision unjustifi ably puts an employee asked to disclose specific inci dents of unlawful discrimination in a pre-charge internal investigation in an untenable position. The employee risks retaliation for disclosing the unlawful activity or for refusing to cooperate with the employer's investiga tion. The only safe course for the employee would be to provide only innocuous information about the supervi sor, even when discrimination is rampant. No employee should be placed in that position. Nor should any em ployer welcome a system in which employees have a disincentive-i.e., the possibility of retaliation not cov ered by Title VII-to cooperate with ongoing investiga tions designed to root out discrimination and, thus, avoid potential liability under Title VII. Accordingly, both employers and employees would benefit from guidance from this Court on the question presented.

2. The question of whether Title VII's anti-retalia tion provision protects an employee's disclosure of un lawful conduct during an employer-initiated investiga tion has arisen with increasing frequency, and has taken on greater importance, following this Court's decisions in Ellerth, Faragher, and Kolstad. As discussed, those decisions create strong incentives for employers to im plement policies and procedures that would identify and correct instances of unlawful discrimination as a means to avoid liability or limit damages under Title VII; em ployees also must avail themselves of such procedures in order to obtain relief under Title VII's anti-discrimina tion provisions.

Not surprisingly, employers have responded to the decisions by implementing or expanding their policies and internal complaint procedures. See, e.g., Amicus Chamber of Commerce Br. at *2, Pennsylvania State Police v. Suders, 542 U.S. 129 (2004) (No. 03-95) ("Fol lowing this Court's decisions in Faragher and Ellerth * * * , employers have made great strides in * * * implementing zero-tolerance policies, establishing user- friendly, effective internal complaint procedures, and vigorously investigating complaints of sexual and other harassment in the workplace."); Jathan W. Janove, The Faragher/Ellerth Decision Tree, 48 HR Mag. (Sept. 2003) ("There is no question that [Faragher and Ellerth] have increased employer understanding of the impor tance of preventive measures. They have contributed to the development of sound anti-harassment policies [and] procedures.").

As employers have begun routinely to conduct inves tigations into sexual harassment in the workplace, it is essential that a clear rule is established to determine whether Title VII protects an employee from retaliation because she discloses unlawful conduct during the course of the employer's investigation. The framework envisioned by Ellerth, Faragher, and Kolstad, supra, depends on participation and truthful cooperation by employees during employer-sponsored investigations. If employees are afraid to report instances of harass ment or to participate in employer investigations out of fear of retaliation, employers may not become fully aware of harassment, thereby preventing them from taking corrective action. Moreover, because employee participation in employer-instituted procedures and cor ollary investigations can, in essence, be a prerequisite to the employee's assertion of Title VII rights, coverage of such participation is equally necessary to achieve "'un fettered access' to Title VII's remedial mechanisms." White, 126 S. Ct. at 2415 (quoting Robinson, 519 U.S. at 346). Encouraging employers to conduct internal inves tigations and requiring employees to comply with those procedures, but then denying protection against retalia tion to employees who disclose unlawful conduct in the course of such investigations, would frustrate the pur poses of Title VII as contemplated by this Court.

The court of appeals observed that an employer that retaliates against an employee who has participated in an internal investigation might be acting unreasonably and would risk losing its affirmative defense to a claim under Title VII's anti-discrimination provisions. Pet. App. 9a-10a. That observation offers no relief, however, to the victims of retaliation who would have no cause of action to vindicate that distinct injury under the statute. And if no victim of harassment files suit (e.g., out of fear of reprisal), both the harassment and the retaliation would occur without redress. Moreover, the court of ap peals' exclusive focus on the employer's motivations ig nores the obvious chilling effect that its rule would have on an employee's willingness to cooperate with the em ployer's investigation.

3. The fact that the Sixth Circuit's decision is unpub lished would normally counsel heavily against plenary review. Here, however, it appears that the decision re flects an entrenched view in the circuit. The decision in this case itself relies on a published decision, Johnson, 215 F.3d at 579, as well as on a previous unpublished Sixth Circuit decision issued several years ago, Bell, 107 Fed. Appx. at 610, that articulated a narrow standard for protection under the opposition clause. Pet. App. 7a. Bell, 107 Fed. Appx. at 610, in turn, expressed the view that published circuit precedent, including John son, "demands active, consistent 'opposing' activities to warrant [Section 704(a)] protection against retaliation." Accordingly, the Sixth Circuit has twice indicated that it views circuit precedent as requiring that the opposi tion clause demand "active" and "consistent" activities in addition to opposition to unlawful activity. And as to the participation clause, the decision here relies on a published decision of the circuit. Pet. App. 7a-8a. More over, petitioner filed a petition for rehearing and rehear ing en banc, with no success.

While the unpublished nature of the decision below and the absence of any published Sixth Circuit prece dent on the particular application of the opposition clause at issue in this case would normally counsel against certiorari, the unpublished decision in this case is built on existing precedent (including another unpub lished decision) that makes it likely that the decision will have staying power, and, in the meantime, the decision creates an anomalous gap in Title VII's enforcement scheme. On balance, this Court's certiorari jurisdiction is warranted to resolve the important question pre sented concerning the proper enforcement of Title VII. See, e.g., NLRB v. Scrivener, 405 U.S. 117, 118 (1972) (observing that certiorari was granted to review scope of retaliation provision under National Labor Relations Act, 29 U.S.C. 157, because it "appeared to have an im portant impact on the administration of the Act").

 

6. CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
GRACE CHUNG BECKER
Acting Assistant Attorney
General
GREGORY G. GARRE
Deputy Solicitor General
LISA S. BLATT
Assistant to the Solicitor
General
DENNIS J. DIMSEY

ANGELA M. MILLER

Attorneys

RONALD S. COOPER
General Counsel
LORRAINE C. DAVIS
Acting Associate General
Counsel
CAROLYN L. WHEELER
Assistant General Counsel
JENNIFER S. GOLDSTEIN
Attorney
Equal Employment
Opportunity Commission

 

 

DECEMBER 2007

1 Petitioner also suggests (Pet. 19) that district courts have con strued the Eleventh Circuit's decision as holding that the opposition clause would cover petitioner's conduct. The decision that she cites for that proposition, MacLean v. City of St. Petersburg, 194 F. Supp. 2d 1290, 1298 (M.D. Fla. 2002), however, relies on a dissenting opinion from Judge Barkett expressing the view that such conduct would be covered by the participation clause. EEOC v. Total Sys. Servs., 240 F.3d at 903 (Barkett, J., dissenting).