Oral Argument in Crawford v. Metropolitan Government of Nashvilled

Yesterday the Supreme Court heard argument in Crawford v. Metropolitan Government of Nashville, in which the issue is whether and to what extent Title VII’s anti-retaliation provision protects employees from being fired for cooperating with an employer’s internal sexual harassment investigation.

Here is a humorous excerpt from the argument of Eric Schnapper, counsel for the employee that in addition to being funny, really gets to the heart of one of the most important issues in the case:

   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?"
    MR. SCHNAPPER:  "You do not, Your Honor."
    CHIEF JUSTICE ROBERTS:  "Well, but, you know, that's why we ask hypotheticals that aren't related to the specific facts, because we're interested in how broadly the proposition you're asking for goes.  I'd still like to find out where you draw the limit.  What if the person says: Mr. Jones would never do anything like that, but if he did that would be terrible.  Now, is that actionable as opposition?"
    ***
    JUSTICE BREYER:  "Is this a real problem?  I mean, let's suppose the opposition clause protects everybody in the internal investigation who could be at all interpreted as favorable to the complainant.  It also protects everybody who could possibly be viewed as neutral.
    "Then you have a problem about what about a person who loves sexual harassment?  This is the hypothetical: he comes in, testifies: I love sexual harassment; it's wonderful, and they fire him.  Now is this a real problem?
    MR. SCHNAPPER:  "It -- it is not, Your Honor.  But -- but as the -- as the Chief Justice pointed out, I'm -- you know, I'm here to answer hypothetical questions, and I'm going to do so."
    JUSTICE GINSBURG:  "But I thought that --"
    [Laughter.]

You can read the entire transcript here.