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Protection under Participation Clause Extended to Alleged Harrassers
Alleged harassers may not be retaliated against for participating in the investigation of harassment against them, according to the Second Circuit in a ruling of first impression. Deravin v. Kerik, 335 F.3d 195 (2d Cir. 2003). In doing so, the court held that “defending oneself against charges of discrimination – to the extent that such defense involves actual participation in a Title VII proceeding or investigation – is 'protected activity' within the scope” of the participation clause of Title VII.
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.
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