Eric Ledger


This article is a case note on the Sixth Circuit’s decision in Niswander. The position of this note is that for the purpose of establishing a retaliation claim under Title VII, 42 U.S.C.A. § 2000e3(a), courts should consider the good-faith production of confidential documents in response to a formal request for discovery as participation activity, not opposition activity. Whether the produced documents are relevant to a formal discovery request should not factor into the participation analysis. The determining question should be whether the employee acted in good faith.

This note will first describe the factual background of the Niswander decision and provide a background for Title VII retaliation litigation. Second, it will discuss why Congress intended to allow irrelevant or provocative activity to be protected under the Title VII antiretaliation statute. Next, it will argue that a good-faith standard is better than a relevance standard. Then, it will contrast the Sixth Circuit’s decision in Niswander with that of other circuits and offer an alternative method for the Sixth Circuit’s analysis. Finally, it will examine the possible ramifications that Niswander may have on Title VII discovery.