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James Tarquin, P.A
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Employees Are Protected From Retaliation When Giving Deposition Testimony In Employment Discrimination Lawsuits

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Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employers from discriminating against employees on the basis of race, color, national origin, sex, and religion. Under Title VII, employees are protected from retaliation for making a charge of discrimination, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under Title VII.  This anti-retaliation provision of Title VII is known as the “participation clause.”  The purpose of the participation clause, as determined by the U.S. Supreme Court in Robinson v. Shell Oil Co., 519 U.S. 337 (1997), is to enable employees victimized by employment discrimination to have “unfettered access” to the “remedial mechanisms” of Title VII. 

Under the participation clause’s language of prohibiting retaliation against employees who testify in a Title VII proceeding, employees are protected from retaliation when giving testimony at a hearing, deposition, or trial in a Title VII lawsuit.  This protection against retaliation extends to employees who bring a Title VII lawsuit and employees who testify as a witness in a Title VII lawsuit. 

Through their extensive experience representing employees who have been victimized by retaliation, our Central Florida employment retaliation attorneys have learned that employers attempt to frustrate the enforcement of Title VII’s antidiscrimination provisions and deter employees from participating in Title VII proceedings by imposing prerequisites to protection under the participation clause.  In doing so, employers recognize that if a witness in a Title VII lawsuit is protected from retaliation only when his or her testimony is found by a court to be “voluntary,” “helpful,” or “reasonable,” employees will be less willing to testify as witnesses in Title VII lawsuits.  Employers further recognize that even when employees are willing to testify as witnesses in Title VII lawsuits, their testimony will be significantly influenced or chilled by a desire to satisfy such prerequisites to protection from retaliation.    

For example, the U.S. Eleventh Circuit Court of Appeals in Merritt v. Dillard Paper Co., 120 F.3d 1181 (1997) rejected the employer’s argument that an employee must establish that his or her deposition testimony was done “voluntarily for the purpose of assisting” the individual bringing the Title VII lawsuit to qualify for protection under the participation clause.  Likewise, the U.S. Fourth Circuit Court of Appeals in Glover v. South Carolina Law Enforcement Div., 170 F.3d 411 (1999) rejected the employer’s argument that an employee must demonstrate that his or her deposition testimony in a Title VII lawsuit was “reasonable” to qualify for coverage under the participation clause.   

Employee Fired For Deposition Testimony

In Glover, Lydia Glover (Glover) brought a retaliation claim under Title VII against her former employer, the South Carolina Law Enforcement Division (SLED), claiming that she was fired because of her deposition testimony in a Title VII lawsuit.  Glover was employed by SLED as a police captain. 

During her employment, Glover received a notice of deposition to testify as a witness in a Title VII lawsuit.  The Title VII lawsuit was filed by a deputy marshal, Jane Koball (Koball), against the U.S. Marshal Service for gender discrimination.  Glover’s connection to the case derived from her employment with the Marshals Service as the U.S. Marshal for South Carolina.  Glover worked for the Marshals Service immediately before SLED hired her.  During her deposition testimony in the Title VII lawsuit, Glover accused her successor as the U.S. Marshal for South Carolina, Isreal Brooks (Brooks), of mismanagement, destruction of office documents, wasting funds, inappropriate behavior, dishonesty, and discrimination.  Brooks eventually learned about Glover’s deposition testimony and complained the Chief of SLED. 

About two months after Glover’s deposition testimony, the Chief of SLED notified Glover that he was terminating her employment.  One reason given by the Chief to Glover for the termination was that her deposition testimony had demonstrated poor judgment.  The Chief later admitted that he “took the deposition into consideration” and that the deposition testimony “tipped the balance in favor of firing.”  Thus, the Chief admitted that Glover was fired because she testified in a Title VII lawsuit.    

Deposition Testimony Does Not Have To Be Reasonable

In moving for dismissal of Glover’s retaliation claim, SLED argued that an employee’s testimony in a Title VII lawsuit is protected by the participation clause only if that testimony is “reasonable.”  SLED maintained that Glover’s deposition testimony was unreasonable because her attacks Brooks were irrelevant to Koball’s Title VII claim and thus did not qualify for protection under Title VII’s participation clause.  The trial court ratified SLED’s reasonableness standard and found that although Glover was fired because of her deposition testimony in a Title VII lawsuit, Glover’s deposition testimony was not protected by the participation clause because it was “unresponsive, uncompelled, and gratuitous.”  Having found that Glover did not qualify for coverage under the participation clause because her deposition testimony was unreasonable, the trial court then concluded that firing Glover because of that deposition testimony was not retaliation prohibited by Title VII.  On appeal, the Fourth Circuit reversed the trial court’s decision and reinstated Glover’s retaliation claim. 

The Fourth Circuit found that grafting a reasonableness standard into Title VII’s participation clause was foreclosed by the “exceptionally broad protection” Title VII confers to employees who testify in Title VII proceedings and “would undermine the objectives of Title VII.”  Given the “great breadth” of this protection, the appellate court explained, “Congress has determined that some irrelevant and even provocative testimony must be immunized so that Title VII proceedings will not be chilled.”  “If a witness in a Title VII proceeding were secure from retaliation only when her testimony met some slippery reasonableness standard,” the appellate court reasoned, “she would surely be less than forth-coming.”  Thus, Fourth Circuit concluded, “all testimony is a Title VII proceeding is protected against punitive employer action.” 

Free Consultation With Central Florida Retaliation Attorneys   

Based in Ocala, Florida and representing employees throughout Central Florida, we have extensive experience representing employees who have been retaliated against for participating in employment discrimination lawsuits.  If you have been retaliated against for participating in an employment discrimination lawsuit, please contact our office for a free consultation with our Central Florida retaliation lawyers.  Our employee rights law firm takes employment retaliation cases on a contingency fee basis.  This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover. 

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