Analysis of Oral Argument Transcript in Crawford Retaliation Case

Workplace Prof Blog as a good initial analysis of the Supreme Court's oral argument in Crawford v. Metropolitan Government of Nashville last week. 

The issue in the case 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.

The appeal arose out of a case between Vicky Crawford and her longtime employer, the Metropolitan Government of Nashville and Davidson County, Tenn. ("Metro"). In late 2001, Metro hired Gene Hughes to oversee employment relations for the area school district, a job requiring him to investigate all claims of discrimination and harassment. In the ensuing months, however, Hughes himself became the subject of sexual harassment complaints from numerous female employees.  During a subsequent internal investigation, Metro officials asked Crawford - who worked under Hughes but had not previously reported any offensive conduct on his part - whether she had observed Hughes engaging in any inappropriate behavior. Crawford replied that Hughes had repeatedly grabbed his crotch in front of her and asked to see her breasts, and on one occasion forcefully pulled her head toward his groin.  The investigation resulted in no disciplinary action against Hughes. But upon its conclusion, according to Crawford, she and other female employees who testified to Hughes’ conduct were fired on other grounds. Crawford, who had worked as a payroll coordinator for more than 30 years, filed a complaint with the Equal Employment Opportunity Commission and, after receiving notice of her right to sue, accused Metro of violating the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964.  [Synopsis Source: ScotusWiki]

As noted by Workplace Prof, the oral argument in the case did not give an absolutely clear indication as to how this case will come out.  This is a classic policy case in which either the interests of employees who participate in internal investigations and/or oppose illegal harassment will be penalized by a limitation on the protection provided to them by the statute or employers will find themselves in a perceived Catch-22 in which they are required to investigate claims of harassment by previous Court decisions but in doing so they potentially create an entire class of potential future retaliation plaintiffs against them.

I also agree with Workplace Prof that Justice Scalia's disdainful comments regarding attorneys that represent employees in such disputes.  Here is the exchange in question.  


CHIEF JUSTICE ROBERTS: My point is simply that the incentive system is skewed because if you lose you pay not only your attorneys' fees but the complainants'. If you win, you have to incur yours. . . . I'm not saying it shouldn't be. But in terms of the pressures towards settlement, it is a very strong incentive.

JUSTICE STEVENS: Is bringing frivolous cases cost-free for the plaintiffs? There are certain costs.

MR. YOUNG: Well, Your Honor, many of these types of cases are taken on a contingent fee basis except for hard costs.

JUSTICE BREYER: It is a mix. I mean, you know, a lot of plaintiffs might be afraid to bring these cases because they'll be accused of doing all kinds of bad things. They don't want their reputations ruined. They have lawyers who take contingent fees because they have to pay for it. Oh the other hand, you have problems with your costs and you have problems dismissing people who should be dismissed. Everybody has problems in this area. That's why we have law and lawyers. They try to minimize it. This doesn't seem fruitful to me.

JUSTICE SCALIA: Isn't it true that financially it is always cost-free for the plaintiff because she has an attorney who is taking it on a contingent basis? Now, you could say it's not cost-free to the lawyer; but even that's not always true because if the lawyer has nothing else to do he may as well be doing this, you know, whatever the odds are.

MR. YOUNG: I agree with that, Your Honor.

Justice Scalia's obvious disdain for employees and the lawyers that would represent them is truly reprehensible.  As an attorney that represents both employees and employers in such matters, it has always been my experience that very few employment-related lawsuits are frivolous.  Does this mean that the plaintiff is always right or always has a good case?  Of course not.  But the disputes are almost always legitimate and deserve to be treated by both attorneys and judges with the same respect that would be shown to any other litigants who come to the judicial system to resolve a dispute.

In the meantime, the best thing that we can say about Justice Scalia is that his name appears on so few majority opinions.