Supreme Court Expands Reach of Anti-Retaliation Protections

January 26, 2009

On Monday of this week, the Supreme Court issued a decision expanding the anti-retaliation protections of federal law.  Title VII prohibits retaliation against employees who "oppose" discriminatory practices or who "participate" in EEOC-related investigations – the aptly named "opposition" and "participation" clauses.  In Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, the plaintiff was terminated shortly after responding to questions from a human resources officer investigating another employee’s internal claims of harassment.  The plaintiff claimed that her termination constituted unlawful retaliation.  The employer asserted that the employee was fired for embezzlement.  At issue was whether the plaintiff’s conduct was protected activity under the opposition clause.  The Supreme Court held that the employee’s corroborating testimony, which was "resistant" and "antagonistic" to the alleged harasser, was sufficient to constitute "opposition." 

The lesson for employers is a simple one:  make sure that you have ample documentation to support termination decisions, particularly where an employee may be able to invoke the protections of the anti-discrimination laws, which now encompass "opposition" in the broadest sense of the word. 

For more information, please contact Laurie F. Rubin, the author of this Alert, at 617 456 8020 or

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