Is It Protected Activity For An Employee To Cooperate With Her Employer's Internal Investigation Of Sex Harassment?

Yesterday, the Solicitor General filed a so-called invitation brief with the Supreme Court in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, No. 06-1595. The text of the Solicitor's brief can be found on the SCOTUSblog. The issue before the Court is whether section 704(a) of Title VII, its anti-retaliation provision, protects an employee from retaliation because the employee cooperated with her employer's internal investigation of a sexual harassment complaint. The Solicitor urges the Court to grant the writ of certiorari and to reverse the Sixth Circuit's decision in this case, holding in an unpublished decision that the employee's cooperation was neither protected under section 704(a)'s opposition or participation clauses. The Sixth Circuit reasoned that the employee's actions in cooperating, that is, "relating unfavorable information" during the investigation, did not qualify as "overt opposition", and accordingly was not protected conduct. With regard to the participation prong of section 704(a), the Court reasoned that participation in a corporate internal investigation is only protected activity when that corporate investigation occurs pursuant to a pending EEOC charge, and as none had been filed at the time of the investigation in this case, employee's participation was unprotected.

When we return from the holiday, we will further discuss and dissect the Solicitor's brief. Quite obviously, the Court having invited the Solicitor to share its views with the Court, and the Solicitor now having urged the Court to take this case, there is a high likelihood that the Court will indeed take cert.