Speech at Work
posted by Helen Norton
I’m interested, among other things, in the relationship between speech and equality. The Supreme Court recently grappled with this relationship in the workplace context in Crawford v. Metropolitan Gov’t of Nashville. There the Court considered the scope of Title VII’s antiretaliation protections, which (among other things) bar employers from discriminating against workers who have “opposed” an illegally discriminatory practice. The Court held that workers engage in protected “opposition” not only when they challlenge job discrimination on their own initiative, but also when they respond to questions during an employer’s internal investigation.
Here, the defendant employer asked the plaintiff whether she had witnessed a particular manager engage in any inappropriate conduct, only to fire her after she described several incidents of sexually harassing behavior by the supervisor in question. Rejecting the Sixth Circuit’s view that the statutory meaning of “opposition” refers only to “active, consistent” resistance initiated by the plaintiff, a unanimous Court held that the term also encompasses a plaintiff who simply discloses her views in response to an employer’s prompt. The Court explained its decision as consistent not only with the plain meaning of the statutory language, but also with the antiretaliation clause’s objective of remedying and preventing job discrimination by protecting employees who identify and challenge workplace bias (citing Debbie Brake’s excellent article on employees’ legitimate fears of retaliation).
So far, so good. But what struck me as most interesting — and potentially most troubling — was the concurring opinion filed by Justice Alito and joined by Justice Thomas. They wrote separately to emphasize their understanding “that the Court’s holding does not and should not extend beyond employees who testify in internal investigations or engage in analogous purposive conduct.” Justice Alito emphasized his fear fhat the Court’s decision would “open the door to retaliation claims by employees who never expressed a word of opposition to their employers” — for example, an employee who “expressed opposition while informally chatting with a co-worker at the proverbial water cooler or in a workplace telephone conversation that was overheard by a co-worker” or in a conversation “after work at a restaurant or tavern frequented by co-workers or at a neighborhood picnic attended by a friend or relative of a supervisor.”
But why shouldn’t such speech be protected (assuming that the plaintiff can meet her burden of proving causation: that her employer punished her because of her private opposition)? Workers’ conversations with their colleagues, friends, and family — both at work and away from it — often offer the best opportunity to share information about and test perceptions of possible discrimination, consider options, and gather courage in figuring out what to do about the problem. Indeed, such speech furthers the goals of Title VII’s antiretaliation protections by encouraging employee efforts to identify, address, and deter discriminatory behavior. Justice Alito doesn’t explain his reasoning, other than to note his concern about “the increasing number of retaliation cases filed with the EEOC” in recent years. But this strikes me as an area in which protecting a broader swath of employee speech is key to ensuring workplace equality.
February 2, 2009 at 6:16 pm
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Responses (6)
DevinB - February 3, 2009 at 4:07 pm
Perhaps the Justice is worried about broadening (diluting) the definition to such an extent that a worker who has been validly fired can file a retaliation claim based on the fact that they had at one point spoken about a workplace bias.
I am not for any kind of workplace bias, nor would I consider it acceptable that a worker be fired FOR discussing opposition to their employer. However, the fact that they have discussed opposition to their employer unbidden in casual conversation does not thereafter protect them from being fired.
Helen Norton - February 3, 2009 at 9:41 pm
I agree that the worker must prove the causal connection between her oppositional speech and any adverse employment action she experiences — i.e., that she was demoted or transferred because of her dissent rather than for her poor performance, personality shortfalls, or any other (lawful) basis. The causation element turns out to be a significant hurdle for many plaintiffs in retaliation and other cases (e.g., First Amendment cases where public employees must prove a causal connection between their protected speech and their government employer’s punitive action).
JP - February 4, 2009 at 11:00 am
I think Alito and Thomas very much have in mind the expense of litigation. Expanding the definition of protected activity to anyone who has non-constructively complained gives a valid cause of action to nearly everyone. (Who hasn’t complained that a supervisor treated them “unfairly?”).
Sure, the non-meritorious claims will fail absent proof of causation, but that happens after hundreds of thousands of dollars have been spent on litigation. (More likely, these cases will settle for nuisance value early on–thus encouraging more frivolous litigation.)
Also, it is the employer’s responsibility to “identify, address, and deter discriminatory behavior.” Title VII provides employees significant protection when complain, and Faragher/Ellerth creates a strong incentive for employers to react promptly and effectively. Limiting protected activity to “purposive conduct” should encourage employees to make constructive complaints, rather than simply engage in often-harmful watercooler gossip.
A.W. - February 4, 2009 at 2:30 pm
Helen
Maybe the concern was to respect the view of some employers that there are proper channels for complaint and that should be respected. Its not my favorite management style, but it’s a common idea and it is a bit much to outlaw it, especially because the statute doesn’t clearly ban it.
But personally on the topic I am more concerned about the severe chilling effect caused by harassment laws. Of course if a man says to a woman “sleep with me or you are fired” and even where an African American is subjected to images of black men hung in effigy, or something on that level. But when a man can be fired merely for slightly boorish behavior when reciting what happened on an episode of Seinfeld, we can be clear that we have gone too far the other way. The fact the man later won a wrongful dismissal suit only proves my point, because given that we are talking about chilling effects, look how fearful the company was of sexual harassment claims.
Fwiw.
Helen Norton - February 4, 2009 at 6:41 pm
Thanks for the thoughtful comments. While I understand the concerns about increased litigation and related expenses, I must confess that I don’t share them. A number of studies — including one earlier this year by Kevin Clermont and Stewart Schwab — confirm a significant drop in employment discrimination filings in recent years. Clermont and Schwab attribute this to the fact that plaintiffs’ success rate is so low. For similar reasons, I’m not persuaded that the prospect of harassment litigation chills workplace speech in a meaningful way: courts are very slow to find that alleged harassment is sufficiently “severe or pervasive to alter the terms and conditions of emloyment and create an abusive working environment” as required by Title VII.
JP - February 4, 2009 at 7:01 pm
Helen,
The recent drop in filings was, of course, preceded by a massive increase in filings through the 1990′s. Also, my tentative theory is that the case law fleshing out the reach of workplace discrimination law, and experiential data resulting from that earlier spike gave attorneys on both sides the ability to pretty accurately value a case very early on.
A defense attorney can provide a client with a reasonable ballpark estimate of the cost-of-defense, liability exposure, and the probability of success on summary judgment and at trial based on an EEOC charge and preliminary investigation. As a result, a increasingly large number of claims are settled during the administrative stage.
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