Speech at Work
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.