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.

Veronica Frazier, the assistant director for the county human resources department was assigned to investigate the allegations.

(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.

The Metro School Board in January 2008 voted unanimously to end Crawford's tenure due to poor performance.

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.

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.

Further, studies show that Ellerth and Faragher prompted employers to "adopt or strengthen procedures for investigating, preventing, and correcting discriminatory conduct."

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.

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."