What Is Protected Activity Under Title VII (Part 6)

Courts Are Split On Whether Participation In An EEOC Investigation By Giving Statements Against The Complainant Is Protected From Retaliation

In Twisdale v. Snow, 325 F.3d 950 (7th Cir. 2003), the Seventh Circuit refused to extend Title VII’s protection to Twisdale who, as chief of the Internal Revenue Service’s Quality Measurement Branch, participated in an EEOC investigation but opposed the claimant’s position. The court acknowledged that, “[r]ead literally,” § 2000e-3(a) protected Twisdale. 325 F.3d at 952. However, the court determined that “everyone concerned in the administration of Title VII and cognate federal antidiscrimination statutes had assumed that the retaliation provision was for the protection of the discriminated against, and not their opponents.” Id. Essentially, the court interpreted the statute as imposing a requirement that a participant in an EEOC proceeding also oppose the discriminatory employment practice to receive protection from retaliation. Id. at 952-53.

In Kelley v. City of Albuquerque, 542 F.3d 802 (10th Cir. 2008), the court refused to follow the Seventh Circuit’s holding, stating “[w]e decline to apply Twisdale here, inter alia, because it impermissibly collapses the opposition and participation clauses of the statute. As the court noted:

The distinction between participation clause protection and opposition clause protection is significant because the scope of protection is different. Activities under the participation clause are essential to the machinery set up by Title VII. As such, the scope of protection for activity falling under the participation clause is broader than for activity falling under the opposition clause. . . . Therefore, requiring that the participant in an EEOC proceeding also oppose a retaliatory employment practice runs counter to the statutory scheme.

Kelley, 542 F.3d at 815 n. 11.

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