Is the standard for determining whether an employee has engaged in protected activity under Title VII of the 1964 Civil Rights by opposing discrimination the same for in-house lawyers as it is for other employees?

That question was implicated by the facts of a case recently decided by the U.S. Court of Appeals for the Tenth Circuit. The opinion suggests that while a different standard has long applied to in-house attorneys, that may no longer be so.

In Weeks v. Kansas, a former general counsel for a state agency purportedly was fired for approaching her boss with discrimination allegations raised by two employees and telling the boss he needed to take the allegations seriously.

However, in claiming retaliation under Title VII, Weeks, the in-house lawyer, did not cite the U.S. Supreme Court's 2009 decision in Crawford v. Metropolitan Government of Nashville & Davidson County, which, pointing to the Equal Employment Opportunity Commission's Compliance Manual, held that when an employee tells her employer she believes unlawful discrimination has occurred, such communication almost always constitutes opposition conduct under Title VII.

Because Weeks did not cite Crawford, the Tenth Circuit, in rejecting her claim, decided her case under pre-Crawford circuit precedent--McKenzie v. Renberg's Inc., a Fair Labor Standards Act case. Under McKenzie, an employee working as in-house counsel must show she stepped outside of that role in opposing employment discrimination in order to be considered to have engaged in Title VII-protected activity.

Thus, whether and how Crawford 's broader "general standard meshes with McKenzie's preexisting and more particular rule for retaliation claims by in-house attorneys is not clear," the Tenth Circuit said.

Other courts also have applied a standard similar to McKenzie in deciding retaliation claims brought by in-house lawyers. It should be interesting to see the approach taken by plaintiffs in future cases involving comparable facts.

A rule similar to the "in-house counsel rule" has been found to apply to managerial employees. Earlier this year, the Eleventh Circuit rejected the contention that Crawford effectively invalidated the "manager rule."