One of the more important cases discussing retaliation protection for employees and specifically what it means to oppose harassment is the US Supreme Court’s decision in Crawford v. Metropolitan Gov’t of Nashville (2009). In that case, a 30-year employee was interviewed as part of the investigation into sexual harassment allegations against one of the directors in the office. She shared with the investigator that the same director also sexually harassed her some times earlier. The employer took no action against the director-harasser. However, the employer soon fired Crawford for allegedly engaging in embezzlement.
One of the key disputed issues in the case was whether Crawford’s participating in the harassment investigation constituted a “protected activity” within the meaning of anti-retaliation laws. The employer argued that “opposing harassment” within the meaning of the law means actively complaining about harassment, rather than answering questions when being approached and interviewed by an investigator.
The US Supreme Court rejected the employer’s argument, concluding that a person can “oppose” discrimination or harassment by responding to someone else’s questions just as surely as by initiating that discussion. The Court noted that nothing in the anti-retaliation statute requires a rule protecting an employee who reports discrimination or harassment on her own initiative, but not protecting the one who reports the same discrimination or harassment in the same words when asked a question.
The Court further noted that holding otherwise would have a chilling effect on discrimination/harassment investigations and would discourage employees from answering the same questions truthfully. After all, if answering questions about harassment and discrimination allegations would not be a protected activity, this would give a good reason to employees to keep quiet in order to avoid the risk of being retaliated by their employer instead of truthfully cooperate and help such investigations.
Effective harassment investigation requires that employees feel comfortable about being open and truthful with the investigator regardless of whether the information they share is brought on their own or comes out as a result of the investigator’s questions. And that’s what the law is designed to provide for and protect.