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During oral arguments Wednesday in Crawford v. Nashville and Davidson County, No. 06-1595, Justice Ruth Bader Ginsburg seemed to embrace the plaintiff's claim that she could pursue a Title VII retaliation action after being fired following her participation in an internal sex harassment inquiry.

Meanwhile, Justice Antonin Scalia expressed doubt over the plaintiff's assertions – so much so that at times he made defense counsel's arguments for him.

Long-time employee

Vickie Crawford was a 30-year employee of the county when she was interviewed as part of an internal investigation into sexual harassment allegations.

Crawford had not made the allegation, but during the interview she described incidents of egregious harassment by a director against her and other employees. The director was verbally reprimanded but not terminated.

Crawford was later placed on administrative leave and ultimately fired for irregularities in the county's payroll office, which she oversaw.

She filed suit under Title VII, claiming she was fired in retaliation for participating in the harassment inquiry.

A federal district court granted summary judgment for the county, and the 6th Circuit affirmed.

The court held that the internal investigation did not constitute an "investigation, proceeding or hearing" under Title VII because it did not involve an EEOC charge, and that Crawford had not "opposed [an] employment practice" because she did not make a complaint, but merely answered questions.

Eric Schnapper, a professor at the University of Washington School of Law in Seattle, represented Crawford. During oral arguments Scalia questioned him about the limits of retaliation claims.

"So a co-worker of your client says: 'You know, the boss really was guilty of sexual harassment' and your client says, 'Gee, that's terrible.' That's enough? That's opposition?" Scalia asked.

"Yes," Schnapper answered.

But Scalia said that created "too broad an entry" into potential Title VII liability.

"You get to the jury by just showing that she said 'Oh, if he did that, it's terrible,'" Scalia said. "I mean, that just lays the employer open to a lot of jury determinations that he shouldn't be subject to, it seems to me."

After more hypotheticals were posed by Scalia and Chief Justice John G. Roberts, Jr., Ginsburg interjected.

"Why are we spending so much time on hypotheticals that are so far from this case?" she asked, more of the other justices than of Schnapper. "This was a person who appeared at an internal proceeding, she gave testimony, very specific testimony. She wasn't saying: 'I'm against harassment.' She said: 'This boss harassed me.' It is about as specific as you get. … Why do we have to reach the outer boundaries of this claim in this case?"

"That is why we ask hypotheticals that aren't related to the specific facts, because we're interested in how broadly the proposition you're asking for goes," Roberts responded.

Nashville assistant metropolitan attorney Francis H. Young represented the county. He argued that the plain meaning of "opposition" does fit the facts of the case.

"It's called the opposition clause. Not the disclosure clause. Not the cooperation clause," Young said. "All the parties have provided the Court with the various dictionary definitions of the word 'oppose,' all of which contain the common theme of resistance, of coming up against something, communicating resistance."

"Why isn't an investigation by the employer an 'investigation'?" Justice David Souter asked. "That's the language of the statute."

"It is an 'investigation.' Our contention is it does not fall under the category of an 'investigation' under this title," Young said

This prompted Scalia to jump in.

"I thought you were going to answer Justice Souter with the assertion that if indeed the Court wants employers to conduct these investigations, it does not want to reduce the incentive to do so," Scalia said.

He suggested that that employees might jump to participate in any investigation knowing that if they are ever fired, they'd have an automatic retaliation claim, making employers less likely to launch investigations.

"Any employee who is smart enough to come in and testify has a guaranteed job," Scalia said. "It is almost like being a federal judge."

A decision is expected later this term.

Questions or comments can be directed to the writer at kimberly.atkins@lawyersusaonline.com