Second Circuit Rules that Defense of Discrimination Suit Constitutes Protected Activity Under Title VII

Title VII of the Civil Rights Act of 1964 includes a provision prohibiting an employer from retaliating against an individual who “has opposed any practice made an unlawful employment practice by this subchapter, or because [the employee] has made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). This provision is most commonly invoked by employees who have either filed discrimination claims on their own behalf or who have given testimony in support of a co-worker’s claim. However, the U.S. Court of Appeals for the Second Circuit recently joined with another federal appeals court in extending the same protection to an individual whose testimony in a Title VII proceeding was offered only in his or her own defense against another employee’s discrimination claim. Deravin v. Kerik, No. 02-7729, 2003 WL 21575346 (2d Cir. July 11, 2003).

The plaintiff in Deravin was an employee in the New York State Department of Corrections (“DOC”) who was repeatedly denied promotion to the position of Deputy Warden despite his twenty years with the DOC, favorable recommendations from supervisors, and his Ph.D. in Criminal Justice Management. Deravin, who is African-American, alleged that the Deputy Warden position had been set aside for applicants of Irish descent. Deravin further alleged that he had been blacklisted by Kerik, the commissioner of the DOC, after Deravin successfully defended himself against sexual harassment charges brought by a co-worker purported to be romantically involved with Kerik.

After filing a charge of national origin discrimination and retaliation with the Equal Employment Opportunity Commission (“EEOC”) and receiving a right-to-sue letter, Deravin brought suit for racial discrimination and retaliation in federal court. The district court dismissed the racial discrimination claim as premature, finding that Deravin had not exhausted the available administrative remedies. (Deravin’s EEOC charge had alleged national origin discrimination, not racial discrimination). The court also dismissed the retaliation claim because “[t]o be protected activity, plaintiff himself must have taken some action to protest or oppose illegal discrimination. Because plaintiff has not alleged in the Complaint that he engaged in any such activity, he cannot make out a claim for retaliation… .”

Deravin appealed, and the Court of Appeals reversed the dismissal of both claims. The racial discrimination claim was deemed ripe because it was sufficiently related to the national origin discrimination claim for which Deravin had filed an EEOC charge. Moreover, the court found that Title VII’s prohibition on retaliation is expansive enough to protect an individual who appears involuntarily in a Title VII proceeding and testifies only in his own defense; the protections are not limited to those whose participation involves opposition to an alleged discriminatory practice. In particular, the court emphasized that the plain language of the statute, which prohibits retaliation against an employee who “participated in any manner in an investigation, proceeding or hearing.” Because it was uncontroverted that Deravin “participated,” albeit reluctantly, in a sexual harassment claim brought against him, he was entitled to protection against retaliation based on that participation.

While the court acknowledged that its ruling might at first glance seem contrary to the aims of Title VII, it reasoned that expansive anti-retaliation protections, available both to claimants and to defendants, “ensure the overall integrity of the administrative process and encourage truthful testimony” by shielding all participants from adverse action flowing from their testimony. The court also noted that the EEOC, in its Compliance Manual, subscribes to the same view, stating that “[t] he participation clause protects those who testify in an employment discrimination case about their own discriminatory conduct, even if such testimony is involuntary.”

At the same time, the court emphasized that the statute’s non-retaliation protection extends only to involvement in the Title VII proceeding and not to the underlying conduct under review. The court illustrated the importance of this distinction with reference to the ruling of another federal appeals court in Merritt v. Dillard Paper Co., 120 F.3d 1181 (11th Cir. 1997). In that case, the plaintiff, Merritt, admitted in deposition testimony that he had participated in activity constituting sexual harassment of a co-worker; in terminating his employment, the employer’s president asserted that his “deposition [in connection with the claimant’s harassment charge] was the most damning to Dillard’s case, and [he] no longer [had] a place here at Dillard Paper Company.” Merritt then brought suit, claiming that he was terminated by reason of his participation — his deposition testimony — in a Title VII case, and that the termination therefore violated the statute’s prohibition on retaliation. While the court opined that Merritt could have lawfully been fired for his role in the harassment, the president’s statement, tying the discharge to Merritt’s deposition testimony, suggested that Merritt had been terminated for his participation in the Title VII proceeding itself, thereby tainting the discharge.

These decisions may lead employers to feel they are caught in a lose-lose situation. A failure to aggressively treat instances of discriminatory behavior in the workplace can be a source of on-going litigation and liability; at the same time, employers may be reluctant to assume the risk of additional Title VII liabilities by terminating or reprimanding a wrongdoer whose discriminatory conduct comes to light through participation in another employee’s Title VII proceeding. In reality, however, this apparent dilemma is a false one. Employers may lawfully discharge or discipline any employee for his or her discriminatory conduct so long as the disciplinary action is not merely a reaction to participation in a protected activity. As an added safeguard to avoid liability in these situations, the Merritt court suggested that an employer conduct its own independent investigation into an employee’s alleged discriminatory conduct and formulate any disciplinary action on the basis of the results of that inquiry, not merely on the damaging testimony previously given by the employee. Thus, while Deravin and Merritt may catch some employers by surprise, the potential pitfalls of those two cases may be readily avoided by careful formulation and articulation of the actual grounds for discipline.