Protection under Participation Clause Extended to Alleged Harrassers

Appellant Deravin was employed for over 20 years with the Department of Corrections. Deravin, who is African-American, applied five times for a Deputy Warden position and was denied the promotion on each occasion. He alleges that the former Commissioner of the Department of Corrections, Bernard Kerik, refused to promote him because Deravin had been accused of sexually harassing a female employee who, he alleges, was romantically involved with Kerik. Two separate investigations were conducted into the sexual harassment claim against Deravin, and both outcomes stated that there was no evidence of wrongful acts. Deravin participated in both investigations. He filed an EEOC charge alleging, among other things, unlawful retaliation for his participation in the harassment investigations. He was subsequently promoted.

The Second Circuit emphasized, in affording protection to the targets of an EEO investigation, that Title VII distinguishes between opposing unlawful practices and participating in an investigation or proceeding. The lower court in this case dismissed plaintiff's claim, finding that Title VII did not protect employees unless they took some action to protest or oppose unlawful discrimination. The Second Circuit rejected this position, reasoning that participation in Title VII proceedings was essential to the enforcement of the statute and the full participation of the accused “may well advance the remedial purpose of Title VII … to ensure the overall integrity of the administrative process and encourage truthful testimony.” The court emphasized, however, that the protection against retaliation afforded by Title VII applied to participation in the investigation and not to the underlying conduct. “Thus, while an employer may not retaliate against an employee solely because the employee participated in a Title VII proceeding, an employer may discipline an employee if its investigation reveals culpable conduct.”