One of the nation’s most prominent conservative jurists recently ruled that the anti-discrimination statutes do not protect from retaliation those named as adverse actors in discrimination complaints and those who participate in discrimination investigations on an employer’s behalf.

In Twisdale v. Snow (7th Cir., No. 02-1736, 4/10/03) U.S. Court of Appeals Judge Richard A. Posner addressed a “legal issue that is both clean and novel,” affirming the U.S. District Court for the Southern District of Illinois, which granted summary judgment for the employer. Judge Posner’s opinion recounted that the plaintiff, Mr. Twisdale, a white IRS employee, alleged he was subjected to retaliation for opposing a black co-worker’s discrimination complaint. When a black co-worker, Ms. Madison, complained of discrimination, Twisdale sided with the employer, saying that he was skeptical of Madison’s claims. Subsequently, Twisdale acted in a supervisory capacity over Madison and reprimanded her for an alleged ethical violation. Madison then charged Twisdale with discrimination and her reprimand was reversed. Thereafter, Twisdale claimed that, in retaliation for the position he assumed against Madison and for disciplining her, his black supervisors harassed him and removed his supervisory and management responsibilities.

Judge Posner reflected that Title VII of the Civil Rights Act of 1964, as amended, does prohibit “an employer [from discriminating] against any of his employees . . . because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the statute.” Though Twisdale would be protected by the letter of the law because of his “participation” in the EEO investigation, Judge Posner wrote that “perverse and absurd statutory interpretations are not to be adopted in the name of literalism; they merely show the limitation of literalism as a mode of interpretation.” Judge Posner suggested that Twisdale’s manner of construing the statute was contrary to the underlying intent of Title VII – to eliminate discrimination in the workplace. “How [Twisdale’s] interpretation could promote the policy of Title VII is beyond us,” Judge Posner wrote.

Judge Posner emphasized that the consensus of those who administer Title VII and other anti-discrimination statutes is that “the retaliation provision was for the protection of the discriminated against, not their opponents.” Employers would be “sitting on the razor’s edge” if they were at risk both for discrimination and for disciplining alleged discriminators, Judge Posner said.

Judge Posner’s ruling is a victory for civil rights and employees’ advocates, who can still encourage employers to act responsibly by curbing workplace discrimination, without any fear of a legally supported backlash.

** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **