The Second Circuit Court of Appeals, which covers New York and Connecticut, recently decided a case that effectively broadened the scope of Title VII’s anti-retaliation clause. Jute v. Hamilton Sundstrand Corp., 420 F.3d 166 (2 nd Cir. 2005). Section 704(a) of Title VII prohibits discrimination against an employee who “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.” 42 U.S.C.A. §2000e-3(a). The issue before the court in Jute was whether this provision, often called the “anti-retaliation clause,” extends to situations where the employee did not testify but had volunteered to do so.

In this case, Donna Jute alleged that she had been retaliated against because she had volunteered to be a witness in a co-worker’s Title VII lawsuit. Although she was listed in court documents as a potential witness, the co-worker’s lawsuit was settled and Jute was never called to testify. When Jute was later terminated from her job, she sued the company claiming that she was the victim of retaliation for having offered to support her co-worker.

The Appeals Court first examined the actual wording of the anti-retaliation clause to determine what Congress might have intended by protecting individuals “participated in any manner” in a Title VII proceeding. The judges noted that while some might view the term “participate” as requiring some form of deliberate or purposeful action, others might deem participation simply as association with the matter to any degree. Relying on a previous decision viewing “participation” as a term that is “expansive and seemingly contains no limitations,” the Second Circuit concluded that the plain language of the clause was enough to find that Jute’s agreement to testify was protected activity.

To buttress their opinion, the Appeals Court observed that Title VII’s purposes are largely achieved through the assistance of employees. For that reason, they felt it necessary to include the anti-retaliation clause which was intended to protect unrestricted access to Title VII’s remedial procedures. The court believed that allowing employers to retaliate against an employee before the employee actually testified would deter people from participating in Title VII lawsuits and therefore defeat the purpose of the law. Therefore, the Second Circuit ruled that Jute’s willingness to testify in the co-worker’s Title VII case protected her from retaliation even though her testimony never was presented.

The Appeals Court did note that while they affirmed an expansive reading of the anti-retaliation clause, their decision should not be read to apply to “every situation in which a plaintiff is involved in a Title VII proceeding, no matter how passively.” Nevertheless, it remains to be seen just how minimal an employee’s participation must be in order to fall outside the anti-retaliation ban.

Although this case does apply to employers outside of the Second Circuit, it may presage rulings to come in our judicial region. Until it is clear how courts will rule in our area, however, employers should seek counsel before deciding whether to discipline or discharge employees who have recently been involved to any degree in a Title VII case.