Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee
Vicky Crawford, was a long-time worker for the Metropolitan Government of Nashville and Davidson County. In 2002, the department of human resources began an investigation into Dr. Gene Hughes, the newly hired employee relations director for the Metro School District. Several female employees had expressed concern about being sexually harassed by Hughes. Veronica Frazier, the assistant director for the county human resources department was assigned to investigate the allegations.
Frazier began by calling employees who had worked closely with Hughes, including Crawford. Crawford described to Frazier several incidents of sexual harassment.
According to Crawford, Hughes has requested on "numerous" occasions to see her breasts. Hughes also, in response to the question "What's up?" grabbed his crotch and replied "You know what's up." On several occasions, Crawford continued, Hughes had pressed his crotch against the window of her office. On one occasion, when Crawford asked Hughes what she could do for him, he grabbed her head and pulled it towards his crotch. Other allegations were made by two other women who worked with Hughes.
Frazier's report did not resolve the allegations, as Hughes denied the allegations and there were no witnesses. The report concluded that Hughes had acted inappropriately, but no disciplinary action was taken against him. (In fact even after information surfaced in March 2003 that he had made false statements on his resume, claiming untruthfully that he was an attorney, a professional football player with the Pittsburgh Steelers, and a Navy SEAL, Hughes was merely demoted from his $91,250 position to a $75,857 position, and then moved to the athletics department and given a $6,500 pay raise. Hughes resigned in August 2003 but was allowed to collect pay at home through October 2003.)
However, all three of the witnesses who had offered evidence of sexual harassment, including Crawford, were dismissed. Crawford had been employed by the district for over 30 years. Crawford had expressed reluctance to report the incidences earlier because Hughes headed the department, employee relations, where charges are reported. Hughes was tasked with investigating claims of sexual harassment. Hughes was also, Crawford noted, a good friend of the Director of the School District Pedro Garcia, and Crawford was worried that this would result in her losing her job. The Metro school board in January 2008 voted unanimously to end Garcia's tenure due to poor performance.
Following her termination, Crawford sued her former employer under Title VII, which protects employees who oppose unlawful employment actions from employment retaliation. The District Court concluded, and the Sixth Circuit Court affirmed, that Crawford was not protected by Title VII on two grounds. First, her statements to Frazier did not constitute "opposition" to illegal conduct, as Crawford did not initiate the investigation. Second, the court held that Crawford was not protected against retaliation because the investigation was an employer's internal investigation and a charge had not been filed with the Equal Employment Opportunity Commission. Crawford only filed with the EEOC after she had been terminated, as required by Title VII.
Crawford appealed to the Supreme Court, who heard the case on October 8, 2008. The court ruled unanimously in her favor on January 26, 2009.
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Decision
Writing for the majority, Justice Souter defines two activities Title VII protects, saying section 704(a) "makes it unlawful 'for an employer to discriminate against any... employe[e]' who (1) 'has opposed any practice made an unlawful employment practice by this subchapter' (opposition clause), or (2) 'has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter' (participation clause)." The Sixth Circuit held, when it heard the case, that the opposition clause demanded "active, consistent" opposing, which it did not find Crawford had done, as she did not initiate her own complaint before to the investigation. It also held that since the internal investigation was not conducted pursuant to a charge pending with the EEOC, Crawford was not protected by the participation clause. The court found that "oppose" is not defined by the statute, so a normal definition of it may be used, per Perrin v. United States. "Thus, a person can 'oppose' by responding to someone else’s questions just as surely as by provoking the discussion," further "we would call it “opposition” if an employee took a stand against an employer’s discriminatory practices not by 'instigating' action, but by standing pat, say, by refusing to follow a supervisor’s order to fire a junior worker for discriminatory reasons." The court supposes there could be a hypothetical case in which an employee describes a "supervisor's racist joke as hilarious," but finds that these "will be eccentric cases, and this is not one of them."
It rejects Metro's argument that "employers will be less likely to raise questions about possible discrimination if a retaliation charge is easy to raise" because "[e]mployers... have a strong inducement to ferret out... discriminatory activity." This is because cases such as Burlington Industries, Inc. v. Ellerth and Faragher v. Boca Raton hold employers "vicariously liable" for actionable hostile working environments created by supervisors. (Such as Hughes "sexually obnoxious behavior.") Further, studies show that Ellerth and Faragher prompted employers to "adopt or strengthen procedures for investigating, preventing, and correcting discriminatory conduct." From the employees perspective, agreeing with Nashville and the Sixth Circuit would mean the prudent employee may decide not answer questions regarding discrimination, as there would be no protection against retaliation. If employees choose not to participate in internal investigations, the employer would have a defense, should a Title VII lawsuit be filed, as Ellerth requires employees to reasonably "take advantage of... preventive or corrective opportunities provided by the employer," a situation described by the court as a "catch-22." The court, then, decided not to overturn the Ellerth-Faragher scheme. Having ruled on the "opposition" question, the court chose not to address the "participation" question.
Justice Alito wrote a concurrence joined by Justice Thomas, in which he agrees with the Court's primary reasoning, but separately emphasizes that, he believes, the Court's holding "does not and should not extend beyond employees who testify in internal investigations or engage in analogous purposive conduct." Alito disagrees with the Sixth Circuit that "opposition" must be consistent and initiated by the employee, but writes that the opposition must be "active and purposive." Alito finds the majority's definition of oppose could also "embrace silent opposition," and it is questionable whether that is protected. He worries that an "interpretation of the opposition clause that protects conduct that is not active and purposive" would "open the door to retaliation claims by employees who never expressed a word of opposition to their employers." As a hypothetical, he asks if an employee would be protected in a case where the opposition was expressed in an informal "water cooler" chat. A fired employee could claim that the termination was retaliatory if the employers became aware of the views the employee had expressed. He notes that EEOC retaliation charges doubled between 1992 and 2007 and fears that an "expansive interpretation of protected opposition conduct would likely cause this trend to accelerate."
While that is not the question of this case, Alito finds the answer "far from clear." For "present purposes," however, "it is enough to hold that the opposition clause does protect an employee" like Crawford.
The U.S. Supreme Court held yesterday in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee ("Metro") that the "opposition clause” of Title VII’s antiretaliation provision is broad enough to protect an employee who speaks out about discrimination when answering questions during an employer’s internal investigation, even though the employee did not initiate the complaint.

This case arose following an investigation by Metro into rumors of sexual harassment. During the investigation, long-time Metro employee Vicky Crawford was asked by a human-resources officer whether she had witnessed inappropriate behavior by another Metro employee, Gene Hughes. In response, Crawford described several incidents of sexually harassing behavior by Hughes. Crawford was subsequently fired, as were the two other employees who also had reported sexual harassment by Hughes. Crawford filed suit, claiming that her dismissal violated Title VII because it was in retaliation for her report of Hughes’s behavior. The district court granted summary judgment for Metro, concluding that Title VII’s antiretaliation provision did not cover the conduct at issue because Crawford had not “instigated or initiated any complaint” against Hughes, but had “merely answered questions by investigators," and the Sixth Circuit agreed, concluding that “opposition” under Title VII “demands active, consistent 'opposing' activities to warrant . . . protection against retaliation." To resolve a conflict among the federal courts of appeals, the Supreme Court granted certiorari.

In a decision authored by Justice Souter, the Supreme Court reversed and remanded for further proceedings, concluding that Crawford’s conduct is covered by the “opposition clause” of Title VII’s antiretaliation provision. That clause makes it unlawful for an employer to discriminate against an employee “because he has opposed any practice made . . . unlawful . . . by this subchapter.” 42 U.S.C. § 2000e-3(a).

At the crux of the Court’s opinion was the meaning of the term “oppose,” which is not defined in the statute itself. The Court held that the word “carries its ordinary meaning,” citing definitions such as “to resist or antagonize,” “to confront,” and “to be hostile or adverse to, as in opinion.” The Court concluded that providing a disapproving account of an employee’s sexually obnoxious behavior may qualify as resistant or antagonistic, citing an EEOC guideline, and observed that communicating a belief that an employer has engaged in employment discrimination virtually always constitutes opposition to that activity. The Supreme Court thus rejected the Sixth Circuit’s interpretation of the “opposition clause” as requiring active, consistent, opposing activities, including the initiation or instigation of a complaint. Under the rule announced today, opposition includes not only those who report discrimination on their own initiative, but also those who report discrimination in response to an investigator’s question. The Court expressly did not address the scope and reach of the “participation clause” under Title VII’s antiretaliation provision, which many observers expected the Court to do under the facts of the case.

In a concurring opinion joined by Justice Thomas, Justice Alito agreed that Title VII’s “opposition clause” applies to the conduct in question, but emphasized that the Court’s decision does not extend beyond employee testimony in internal investigations or other analogous purposive conduct. In Justice Alito’s view, the Court has not resolved, for example, whether employees who do not communicate their views to employers through purposive conduct are protected by the antiretaliation provision. Thus, the concurrence questioned whether “silent opposition” by an employee would be covered under the "opposition clause."

While the opinion in Crawford may broaden the circumstances in which employees can pursue retaliation claims under Title VII, the long-term impact of the ruling will depend on how far beyond internal investigations, if at all, the decision is applied. As Justice Alito points out in his concurring opinion, yesterday's decision does not explicitly answer that question.
Crawford v. Metro. Gov’t of Nashville & Davidson County, 129 S. Ct. 846 (Jan. 26, 2009)
Summary of Crawford: o The issue in the case was whether Title VII protected an employee who spoke out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation. o The lower court held that answering questions in this manner did not constitute adequate “opposition” requisite to trigger the protections of Title VII’s retaliation provisions. o The Supreme Court reversed, and held that the plaintiff’s conduct constituted adequate “opposition” for the purposes of Title VII.
Argument for the “Opposition”: The Supreme Court Clarifies Employees’ “Opposition” as Protected Activity
Published Date:
May 27, 2009
Author:
What constitute an employee’s “opposition” to conduct such that it is protected under the law?
Do an employee’s comments during an employer’s internal investigation constitute an “opposition”?
What about comments to a supervisor, even without an internal investigation?
What about comments overheard by another manager, whether within the workplace, such as at a water cooler, or even outside the workplace, such as in a restaurant? Do these acts constitute an employee’s “opposition”?
And finally, at its broadest, what does it mean to “oppose” anything?
These questions were recently addressed by the United States Supreme Court, in a decision that clarifies employees’ rights and employers’ obligations, and which, by providing a certain definition of the term “oppose,” provides practical guidance to both employees and employers regarding potential claims for unlawful retaliation.
By way of background, Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating on the basis of race, color, sex, pregnancy, religion, or national origin. 42 U.S.C. 2000e, et seq. Like many anti-discrimination laws, Title VII also prohibits retaliation against employees. 42 U.S.C.A. § 2000e-3(a). Specifically, Title VII makes it unlawful for an employer to discriminate against an employee either “[1] because he has opposed any practice made an unlawful employment practice by this subchapter” (“opposition clause”), or “[2] because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter” (“participation clause”). 42 U.S.C. § 2000e-3(a). This anti-retaliation provision, and the “opposition clause” in particular, were recently put into question by the United States Supreme Court in Crawford v. Metropolitan Government of Nashville and Davidson County, Tenn., __ U.S. __, 129 S.Ct. 846, 172 L.Ed.2d 650 (U.S. Jan 26, 2009). Background
In 2002, the Metropolitan Government of Nashville and Davidson County, Tennessee (“Metro”), began an internal investigation into rumors of sexual harassment by one of its employees, Gene Hughes. During Metro’s investigation, a human resources officer asked Vicky Crawford, a 30-year employee who had not initiated the investigation, whether she had seen Hughes engage in any “inappropriate behavior.” In response, Crawford described several instances of sexually harassing behavior which she said Hughes had committed against her. After its investigation, Metro took no action against Hughes. However, several months later, it did fire Crawford and two other accusers, claiming in Crawford’s case that she was terminated for “embezzlement.” Crawford, 129 S.Ct. at 849. Crawford subsequently claimed that Metro had retaliated against her as a result of her report of Hughes’s behavior, and she filed a charge with the Equal Employment Opportunity Commission, which was followed by a federal lawsuit in the United States District Court for the Middle District of Tennessee. Id. at 849-850.
District Court & Court of Appeals opinions
In reviewing Crawford’s claim, the district court granted summary judgment for Metro, holding that Crawford could not satisfy Title VII’s “opposition clause” because she never “instigated or initiated” any complaint, but merely “answered questions by investigators in an already-pending internal investigation, initiated by someone else.” Id. at 850 (citation omitted, emphasis added) Thus, Crawford had not “opposed” any unlawful practice.
On appeal, the United States Court of Appeals for the Sixth Circuit affirmed the district court’s dismissal of Crawford’s claim. In a decision that had been cited several times by federal district courts in Ohio, the Sixth Circuit held that Title VII’s opposition clause “demands active, consistent ‘opposing’ activities to warrant . . . protection against retaliation,” whereas Crawford did not claim “to have instigated or initiated any complaint prior to her participation in the investigation, nor did she take any further action following the investigation and prior to her firing.” Id. (quoting 211 Fed. Appx. 373, 376 (6th Cir. 2006)). Supreme Court opinion The Supreme Court reversed the Sixth Circuit’s decision, holding that Crawford’s response during Metro’s investigation was in fact covered by the “opposition clause,” as it was “an ostensibly disapproving account of sexually obnoxious behavior toward her by a fellow employee, an answer she says antagonized her employer to the point of sacking her on a false pretense.” Id. at 850-51. In addition to its legal implications, what makes the Supreme Court’s opinion in Crawford interesting is that its analysis turned not as much on legal precedent as it did on the definition and interpretation of the word “oppose”: when may it reasonably be said that someone “opposes” something?
According to the Court, Title VII’s opposition clause makes it “unlawful . . . for an employer to discriminate against any . . . employe[e] . . . because he has opposed any practice made . . . unlawful . . . by this subchapter.” The Court continued that because the term “oppose” was not defined in the statute, the term carried its “ordinary” meaning, which the Court found in several dictionaries as: “to resist or antagonize . . . ; to contend against; to confront; resist; withstand.” Id. at 850.
In light of this “ordinary” definition of the term “oppose,” the Court concluded that Crawford’s statement would certainly qualify in the minds of reasonable jurors as ‘resist[ant]’ or ‘antagoni[stic]’ to Hughes’s treatment, if for no other reason than the point . . . explained by an EEOC guideline: ‘When an employee communicates to her employer a belief that the employer has engaged in . . . a form of employment discrimination, that communication’ virtually always ‘constitutes the employee’s opposition to the activity.’
Id. at 851. The Court expressly rejected the Sixth Circuit’s holding in Bell v. Safety Grooving & Grinding, in which the Sixth Circuit ruled that just “answering questions” falls short of “opposition,” that the opposition clause “demands active, consistent ‘opposing’ activities to warrant . . . protection against retaliation,” and that an employee must “instigat[e] or initiat[e]” a complaint to be covered.” Id. (quoting Bell, supra, at 610) According to the Supreme Court, “though these requirements obviously exemplify opposition as commonly understood, they are not limits of it.” Id. Indeed, the Supreme Court described the Sixth Circuit’s definition as “freakish”:
‘Oppose’ goes beyond ‘active, consistent’ behavior in ordinary discourse . . . Countless people were known to ‘oppose’ slavery before Emancipation, or are said to ‘oppose’ capital punishment today, without writing public letters, taking to the streets, or resisting the government. And we would call it ‘opposition’ if an employee took a stand against an employer's discriminatory practices not by ‘instigating’ action, but by standing pat, say, by refusing to follow a supervisor’s order to fire a junior worker for discriminatory reasons. There is, then, no reason to doubt that a person can ‘oppose’ by responding to someone else’s question just as surely as by provoking the discussion, and nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question.
Id. The Supreme Court rejected the argument that its holding would make employers less likely to conduct investigations, since employers still have “a strong inducement to ferret out and put a stop to any discriminatory activity in their operations as a way to break the circuit of imputed liability” under the Farragher/Ellerth affirmative defense. Id. at 852. Concurring opinion
In a concurring opinion, Justice Alito, with Justice Thomas joining, said that while the term “oppose” does not mean that a complaint must be “instigated or initiated” by the employee, “the primary definitions of the term ‘oppose’ do, however, require conduct that is active and purposive.” Id. at 854. Justice Alito expressed concern that the Court’s definition of “opposition” may include “opinions,” a definition which “embraces silent opposition.” According to Justice Alito, all of the other protected conduct, such as making a charge, testifying, or assisting or participating in an investigation, “requires active and purposive conduct.” Id. Justice Alito said that it was therefore questionable whether “silent” opposition was covered by the “opposition clause,” and that the Court’s definition “would open the door to retaliation claims by employees who never expressed a word of opposition to their employers”:
Suppose, for example, that an employee alleges that he or she 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 suppose that an employee alleges that such a conversation occurred 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.
Id. Because retaliation claims are sometimes permitted on the basis of the amount of time lapsed between the purported “opposition” and the adverse employment action alone, Justice Alito said that an employee claiming retaliation may be able to establish causation “simply by showing that, within some time period prior to the adverse action, the employer, by some indirect means, became aware of the views that the employee had expressed.” Nevertheless, because Justice Alito agreed with the decision as it applied to Vicky Crawford, he concurred in the judgment.
Practical Analysis & Advice
Because of the broad interpretation of the term “opposition” that the Supreme Court has now applied in Crawford, and because of the potential applicability of the Court’s definition to other anti-retaliation statutes, it is likely that the Crawford decision will result in an increased number of retaliation claims by employees. In order to reduce the risk of violating the law when conducting internal investigations into allegations of discrimination, employers should remind employees of the company’s own anti-retaliation policy, and that the employees will not be retaliated against in any way for participating in the investigation. Employers should also take the opportunity to remind employees of all available avenues for reporting potential retaliation, whether to the employee’s supervisor, a human resource department, or other management. Finally, employers should be particularly cautious (or meticulous, if need be) about taking any adverse actions against participants in internal investigations. This will hopefully minimize the potential for violations of the law, and by extension the potential for claims by employees.
Cross-8e: Case Problem with Sample Answer
Chapter 22: Employment Discrimination

22–6. CASE PROBLEM WITH SAMPLE ANSWER: Sexual Harassment.

The Metropolitan Government of Nashville and Davidson County, Tennessee (Metro), began looking into rumors of sexual harassment by the Metro School District’s employee relations director, Gene Hughes. Veronica Frazier, a Metro human resources officer, asked Vicky Crawford, a Metro employee, whether she had witnessed “inappropriate behavior” by Hughes. Crawford described several instances of sexually harassing behavior. Two other employees also reported being sexually harassed by Hughes. Metro took no action against Hughes, but soon after completing the investigation, Metro accused Crawford of embezzlement and fired her. The two other employees were also fired. Crawford filed a suit in a federal district court against Metro, claiming retaliation under Title VII. What arguments can be made that Crawford’s situation does or does not qualify as a retaliation claim under Title VII? Discuss. [Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, __ U.S. __, 129 S.Ct. 846, 172 L.Ed.2d 650 (2009)]
Sample Answer:
In a retaliation claim, an individual asserts that she suffered a harm as a result of making a charge, testifying, or participating in a Title VII investigation or proceeding. To prove retaliation, a party must show that the challenged action was likely to have dissuaded a reasonable employee from making or supporting a charge of discrimination. One argument that Crawford’s situation does not qualify as a retaliation claim under Title VII is that she did not initiate a complaint, but merely answered questions in an investigation initiated by someone else. Also, the investigation was not related to a pending Title VII case. But the statement that Crawford made to the Metro human resources officer described a co-worker’s “inappropriate” sexually harassing behavior. It is reasonable to assume that the statement was opposed to the behavior. Crawford contends that her description antagonized her employer to the point of sacking her on a false pretense. If an employee who reported harassing behavior or other discrimination in answering an employer’s questions could be penalized without a remedy, prudent employees would have a good reason to keep quiet about offenses against themselves or others. This is not the goal of Title VII or other employment discrimination laws, which are predicated on eliminating such conduct in workplaces. In the case on which this problem is based, the trial and lower federal appellate courts issued rulings in the employer’s favor, but based partially on the reasons stated above, the United State Supreme Court reversed these rulings and remanded the case.
US Supreme Court; Crawford v Metropolitan Government of Nashville, 1‐26‐09
1/26/09: In Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, 129 S. Ct. 846 (2009), the US Supreme Court unanimously ruled that an employee engaged in protected activity under Title VII's retaliation provision by answering an employer's questions in connection with a sexual harassment investigation started by company rumors about a male supervisor. Justice Souter wrote the majority opinion, joined by Roberts, Stevens, Scalia, Kennedy, Ginsburg, and Breyer. Justice Alito wrote an opinion, concurring in the judgment, joined by Justice Thomas
Ms. Crawford Responds to an Investigation into Sexual Harassment
Here is what happened: Rumors started circulating about sexually inappropriate behavior by a male supervisor, Gene Hughes, at "Metropolitan Government of Nashville and Davidson County" ("Metro"). A humresources employee started investigating, and asked Vicky Crawford whether she had seen any inappropriate behavior by Mr. Hughes. Crawford responded yes, and described several instances of sexually inappropriate behavior. For example, Ms. Crawford had asked Mr. Hughes "what'and he responded by grabbing his crotch and saying "you know what's up". On another occasion, Mr. Hughes grabbed Ms. Crawford'shead and pulled it toward his crotch. The human resources employee talked to two oemployees who similarly reported sexually harassing behavior from Mr. Hughes.
Although all 3 of those employees reported, in response to questions by Metro's human resources investigator, sexually offensive behavior by Mr. Hughes, none of them initiated any sexual harassment complaint themselves.
As a result of its investigation, Metro took no action against Mr. Hughes, the harasser. On the other hand, Metro fired Ms. Crawford and the other two employees who answered the HR employee's questions‐‐all 3 were fired shortly after the investigation into Mr. Hughes was concluded. Ms. Crawford had been employed at Metro for 30 years
Case Dismissed: Ms. Crawford Didn't "Oppose" Sexual Harassment
Ms. Crawford then filed a charge of discrimination with the Equal Employment Opportunity Commission, and then filed suit in federal court in Tennessee, claiming she had been fired in retaliation for her reporting of Mr. Hughes' sexual harassment.
The Trial Court dismissed her lawsuit, and the US Court of Appeals for the Sixth Circuit affirmed the trial court's decision. The Sixth Circuit agreed that the lawsuit should be dismissed because Ms. Crawford did not initiate her own sexual harassment complaint, but instead simply responded to questions initiated by Metro in Metro's investigation into the rumors about Mr. Hughes.
Supreme Court Reinstates Ms. Crawford's Case, Defining "Opposition"
The US Supreme Court concluded that Mr. Crawford satisfied the retaliation provision of Title VII and reinstated her case. This is why.
Title VII's retaliation provision, 42 U.S.C. § 2000e‐3(a), makes it "an unlawful employment practice for an employer to discriminate against" an employee because: the employee has "opposed any practice made an unlawful employment practice " by Title VII (this is called the "opposition clause"), or • the employee has "made a charge, testified, assisted, or participated" in any "investigation, proceeding, or hearing" under Title VII (this is called the "participation clause").
In addressing the "opposition clause": The Sixth Circuit concluded Ms. Crawford didn't "oppose" any discriminatory practice because she didn't file any complaint herself, and because "opposition" requires "active, consistent" opposition activities. Merely responding to the HR employee's questions, according to the Sixth Circuit, was not "opposition", so the employer was free to take adverse or retaliatory action against Ms. Crawford. The US Supreme Court rejected this reasoning, as I will discuss below.
The Sixth Circuit also addressed the "participation clause" and concluded Ms. Crawford had no protection against retaliation because she had not "participated" in any complaint proceeding under Title VII. The US Supreme Court did not address this ruling.
The US Supreme Court rejected the Sixth Circuit's reasoning on the "opposition clause" and reinstated Ms. Crawford's case. The US Supreme Court said the word "oppose" in Title VII should be given its "ordinary meaning", in part based on a dictionary definition, to "resist or antagonize", or to "contend against; to confront; resist; withstand". 1 The US Supreme Court easily found that Ms. Crawford's responses to the HR employee’s questions constituted "opposition" to Mr. Hughes' sexually inappropriate behavior. There was "no reason to doubt" that a person can "oppose" by "responding to someone else's question just as surely" as by "provoking the discussion", and nothing in Title VII requires a "freakish rule" ("ouch!!" says the Sixth Circuit) protecting an employee who "reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question".
Because the US Supreme Court found Ms. Crawford's case should be reinstated because she satisfied the "opposition clause," the US Supreme Court did not address the question of whether her statements satisfied the "participation clause". 2 Justices Alito and Thomas, in their opinion concurring in the result, agreed with the "primary" rationale in Justice Souter's majority opinion, but were concerned that some of the language in the majority opinion (referencing part of a dictionary definition) could protect an employee who "silently" opposed discriminatory behavior. They thought there would have to be some public manifestation of the opposition, and they thought Ms. Crawford did so.