For retaliation cases, an employee’s active participation in another person’s discrimination case has been viewed, in the past, as the threshold to be a "protected activity" under Title VII’s retaliation clause.  That has been watered down in the Second Circuit in recent years.  A new District Court decision today has concluded that simply expressing a reluctance to testify in another employee’s case, without actually testifying, could also be a protected activity.

In Tucker v. Journal Register East, (known more commonly as The New Haven Register), the Plaintiff — a former employee, alleged that the Register terminated her employment because she was opposed to testifying as a favorable witness in the Register’s defense of another employee against whom a sexual harassment complaint had been filed.  The Employer filed for summary judgment claiming that the employee never opposed a discriminatory practice.

The Court rejected that argument finding that a different section of Title VII analysis — the participation clause — may apply.   Notably it follows the "it would leave the employee ‘wholly unprotected’ language used by the Second Circuit in recent years. 

The court believes that, in accordance with the principles set forth by the Supreme Court…, and by the Second Circuit…, [the employee]’s conduct is sufficient to qualify as a “protected activity” under Title VII. To hold otherwise would permit an employer involved in a Title VII proceeding to retaliate against an employee based upon that employee’s decision as to what her participation in the Title VII would be. Indeed, [the employee- would be “wholly unprotected” if the court were to find that the Register could terminate her because she had changed her mind about testifying on the Register’s behalf in the CHRO proceeding.

While the court’s broad reading of Title VII is disputable, it appears the court was simply troubled by the timing of the employee’s termination; it occurred two days after the employee allegedly expressed reluctance.  Moreover, the employer’s reasons for terminating the employee (she allegedly accepted a collect call at work from a felon at a state correctional facility) seemed, to the court, excessively harsh.

Because this case involved a local newspaper, it’ll be curious to see the media’s reaction to this case. Obviously, this is only a denial of summary judgment; the employer may ultimately prevail at trial. But newspapers have a tendency to gloss over these facts in reporting about the case.