Judicial Notebook

According to the 6th Circuit Court of Appeals, Vicky Crawford, a school district payroll coordinator in the Metropolitan Government of Nashville/Davidson County in Tennessee, was fired after participating in a sexual harassment investigation involving Gene Hughes, the school district's director of employee relations. Although Crawford did not initiate the investigation, she and two female co-workers cooperated with investigators. All three reported Hughes behaved unprofessionally. Investigators determined that Hughes had engaged in inappropriate conduct, but that his behavior was not severe enough to warrant formal discipline. Soon after, the school district investigated the female workers, accusing them of using drugs and embezzling, charges that were ultimately unfounded. All three employees were terminated. Crawford asserted that her involvement in Hughes's inquiry led to her termination, but lower courts found little merit in her claim.

Crawford claimed that the government violated her Title VII rights. Under Title VII's "opposition clause," employers cannot discriminate against employees who oppose unlawful employment practices, including sexual harassment. In addition, Title VII's "participation clause" protects employees who initiate a charge as well as those who testify, assist or participate in formal workplace investigations. The 6th Circuit Court of Appeals held that Crawford was not protected under either clause, claiming that she did not actively oppose the harassment by initiating formal proceedings herself. Lacking this overt action, the court determined that Crawford did not have a credible "opposition" argument. In addition, the 6th Circuit held that the internal investigation fell outside the purview of the "participation clause" since it was conducted outside a formal Title VII sexual harassment inquiry.

This fall, the Supreme Court will determine whether the anti-retaliation provision of Title VII protects workers from being terminated for cooperating in such internal investigations (Crawford vs. Nashville/Davidson, No. 06–1595).

The legal and psychological impact of retaliation

Although Title VII's anti-retaliation clause prevents employers from taking actions that deter employees from complaining to their employers, amicus briefs filed on behalf of Crawford argue that the 6th Circuit's decision contradicts the clause's intent. Indeed, the decision may have widespread ramifications on the willingness of victims and witnesses to cooperate in internal investigations. After all, employees who participate in informal investigations may remain silent if they know they can be fired for providing potentially negative information.

Equal protection is also of concern. The information provided by an employee who initiates an investigation may be identical in all respects to the information provided by an employee who merely cooperates in an investigation, but only the former would be protected under Title VII's opposition and participation clauses.

Although the Supreme Court will decide whether such differential legal protection is warranted, research on sexual harassment shows that unwelcome social sexual behavior has negative ramifications for employees' psychological well-being. Research shows, for example, a positive correlation between workplace tolerance of harassment and the victimization of workers. Indeed, employees in workplaces that have lax sexual harassment rules report a greater frequency and more severe instances of harassment. The monetary costs associated with sexual harassment reach into the millions. The psychological burden is similarly staggering. Victims often report suffering somatic symptoms, ranging from mild fear, embarrassment and humiliation, to severe disorders such as major depressive disorder, generalized anxiety disorder, and even post-traumatic stress disorder. Fear of retaliation may exacerbate these symptoms, especially for workers who suspect that voicing their complaints will lead to professional devaluation, potential demotion, ostracism and negative interpersonal relationships with co-workers. Research by Cortina and Magley (2003) indicates that these "self-silencing" coping techniques may be more harmful to workers' psychological well-being than coming forward with their grievances.

Should the Supreme Court rule that internal sexual harassment investigations are not protected by Title VII's anti-retaliation clause, employees who are already concerned about voicing their complaints or cooperating when others complain may withdraw even further and, as a result, decide to suffer silently.

"Judicial Notebook" is a project of APA's Div. 9 (Society for the Psychological Study of Social Issues).