Should Special Retaliation Rule Apply to HR?

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By Patrick Dorrian

Jan. 27 — Whether HR professionals, managers and in-house lawyers are protected against retaliation by their employer when pushing discrimination and harassment complaints they receive up the chain of command is a tricky question, employment lawyers told Bloomberg BNA in a series of interviews.

Federal courts in some parts of the country have recognized a so-called “manager rule” under Title VII of the 1964 Civil Rights Act. Under the rule, employees who are tasked as part of their job description with receiving and reporting job bias complaints don't engage in protected activity for purposes of Title VII's anti-retaliation protections merely by taking such complaints or relaying them to upper management, Stacey L. Pitcher, a partner in the Hartford, Conn., office of management-side firm Goldberg Segalla, told Bloomberg BNA Jan. 22.

She said employers favor the manager rule, which requires such workers to do something more to oppose discrimination, because otherwise these employees might be able to build a retaliation claim just by doing their job, making it risky to discipline them when it's otherwise appropriate to do so.

Without the manager rule, employers could face “an avalanche of litigation” under Title VII, Amy M. Pocklington of Ogletree, Deakins, Nash, Smoak & Stewart P.C. told Bloomberg BNA Jan. 27.

But employee rights attorney Terry N. Grimes of Roanoke, Va., said he believes the trend among federal courts is away from application of the manager rule in the employment discrimination context.

He said the rule, which was developed in Fair Labor Standards Act cases, may be gaining ground under that statute. But in light of recent federal appeals court decisions, he said, “it has lost traction” under Title VII.

“I think that's the way the cases will go now” in the Title VII context, Grimes told Bloomberg BNA Jan. 25, meaning that courts will reject application of the manager rule in workplace bias cases. He noted, however, that the U.S. Supreme Court has yet to weigh in on the issue.

Rule Needed to Control Litigation Floodgates?

Whether managers, HR personnel and in-house attorneys whose duties include receiving and conveying employee bias complaints are protected against retaliation for what some say is simply doing their job isn't without significant potential impact on a company's bottom line.

According to the Equal Employment Opportunity Commission, the number of retaliation charges filed annually with the agency has risen dramatically over the past two decades, jumping from approximately 22.6 percent of EEOC charge filings in fiscal year 1997 to 42.8 percent in fiscal 2014 .

Anything that increases the range of employees who can bring retaliation claims under Title VII and similar laws “has real potential to open up the litigation floodgates,” Pitcher said.

Prof. Michael Foreman of Pennsylvania State University's Dickinson School of Law in Carlisle, Pa., said he understands that concern. But he said there's a difference between being able to claim retaliation and being able to prove it.

“What people lose sight of,” he told Bloomberg BNA Jan. 22, is that a manager who receives and forwards an employee's workplace discrimination complaint still must establish a link between that protected activity and any resulting discipline or other adverse employment action in order to recover under Title VII.

That's the “fallacy” of the employers' argument in favor of the manager rule, he said.

But according to Pitcher, her experience is that retaliation claims are always the toughest type of discrimination claim for an employer to defend. And without the manager rule, she said, managers and HR personnel responsible for handling job discrimination complaints will almost always be able to prove the causation element of a retaliation claim.

Anything that increases the range of employees who can bring retaliation claims under Title VII and similar laws “has real potential to open up the litigation floodgates,” Pitcher said.

Because these employees often are regularly engaged in taking or otherwise acting on bias complaints, an adverse action taken against them by their employer at any time might be seen—just from the close timing of events alone—as linked to that activity, Pitcher said.

And having to defend retaliation claims by such workers still results in significant costs to employers even where liability isn't ultimately found and monetary damages aren't awarded, said Pocklington, a partner in Ogletree's Richmond, Va., office.

Views of Fourth Circuit and EEOC

Both Grimes and Foreman cited the U.S. Court of Appeals for the Fourth Circuit's August decision in DeMasters v. Carilion Clinic, 796 F.3d 409, 127 FEP Cases 1396 (4th Cir. 2015), which held that the manager rule doesn't apply under Title VII, as an example of a court that got things right . Grimes represented the plaintiff in the case.

The DeMasters court “did a good job of walking through” why the manager rule has no application under Title VII from a statutory point of view, Foreman said. Foreman was part of a group that submitted an amicus brief in the case on behalf of the National Employment Lawyers Association in support of the plaintiff. He added that the court also explained why even if application of the manager rule under the FLSA is proper, that doesn't mean the rule should also apply under Title VII. In addition, he noted that the Fourth Circuit found that the two laws have different underlying purposes and policies.

According to the Fourth Circuit's opinion, the FLSA's anti-retaliation provision prohibits retaliation against an employee because he or she has filed a complaint or instituted or caused to be instituted an FLSA or related proceeding, has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee. Title VII, on the other hand, makes it unlawful for an employer to retaliate against an employee because he or she has opposed an employment practice prohibited by Title VII or because he or she has made a charge, testified, assisted or participated in any way in a Title VII investigation, proceeding or hearing, the court said.

“Thus, the conduct protected by the FLSA is far more constricted than the broad range of conduct protected by Title VII's anti-retaliation provision,” the Fourth Circuit wrote in DeMasters.

As a result, Title VII protects all employees against retaliation, regardless of their role in a company, Foreman said. “There is no limiting principle in Title VII itself” when it comes to retaliation, he added.

The Fourth Circuit's holding is consistent with the EEOC's opposition to the manager rule, which the commission has stated in various amicus and other court filings. And the agency has also made clear in a newly proposed enforcement guidance its view that the manager rule has no place in the context of employment discrimination law.

The statute's anti-retaliation provision protects all conduct opposing workplace bias, “even when those who engage in the opposition are managers, human resources personnel or other internal EEO compliance advisors to an employer,” the EEOC's Enforcement Guidance on Retaliation and Related Issues states. Managers and other employees with responsibility for receiving and conveying workplace bias complaints within a company shouldn't be required to “step outside” of that role and “assume a position adverse to the employer in order to engage in protected activity,” according to the EEOC.

The EEOC's view should influence any courts considering the issue, Foreman said, noting that the Fourth Circuit in DeMasters mentioned that the agency's interpretation of the laws it enforces is entitled to some deference.

But What's the Law Elsewhere?

All of the attorneys interviewed by Bloomberg BNA agreed that the Fourth Circuit flatly rejected application of the manager rule under Title VII, but just what the law is in other federal circuits brought less agreement.

In Johnson v. University of Cincinnati, 215 F.3d 561, 82 FEP Cases 1767 (6th Cir. 2000), the U.S. Court of Appeals for the Sixth Circuit held that an employee who opposes hiring discrimination of a type that an Ohio university's affirmative action program was designed to correct and prevent was covered under Title VII's “opposition” clause, even though, as a high-level affirmative action official, he had a contractual duty to come forward with such concerns.

Similarly, in Littlejohn v. City of New York, 795 F.3d 297, 128 FEP Cases 234 (2d Cir. 2015), the U.S. Court of Appeals for the Second Circuit in August held that the manager rule didn't preclude a city employee from engaging in protected activity under Title VII, even though it was her job as an EEO director to investigate and prevent workplace discrimination.

On the other hand, the Eleventh Circuit in Brush v. Sears Holdings Corp., 466 F. App'x 781, 114 FEP Cases 1103 (11th Cir. 2012) (unpublished opinion) , found the rule persuasive and applied it, and the Tenth Circuit in Weeks v. Kansas, 503 F. App'x 640, 116 FEP Cases 1073 (10th Cir. 2012) (unpublished opinion), similarly applied the rule in a case involving an in-house attorney.

But Grimes and Foreman stressed that the Tenth and Eleventh circuit decisions are unpublished opinions and thus carry no precedential weight. Federal appellate courts generally “frown upon” litigants citing to unpublished opinions, Grimes said.

The justices and lower federal courts have been very protective of the right to complain about workplace bias, because the substantive right to be free from discrimination is effectively taken away if an employee who reports discrimination can be subjected to retaliation for reporting it, Foreman told Bloomberg BNA.

However, while in Grimes's view the Sixth Circuit in Johnson squarely rejected application of the manager rule under Title VII, Pocklington said she believes the plaintiffs' retaliation claims in that case and in Littlejohn were allowed to go forward because both plaintiffs also were critical of how their employer was handling the underlying bias. In other words, the employees in Johnson and Littlejohn actually “stepped outside” their bias-reporting roles and did the “something more” that the manager rule requires, according to Pocklington.

In her view, the Fourth Circuit in DeMasters was the first federal appeals court to draw a distinction between the language of Title VII and the FLSA, and to categorically reject the manager rule. Ironically, even though the DeMasters court categorically rejected the rule, it still conducted an analysis of the plaintiff's actions to determine whether they rose to the level of Title VII opposition, Pocklington said.

In addition to those decisions, Pitcher, Grimes and Foreman all noted that although DeMasters is a decision of the Fourth Circuit, the judges that decided the case are all members of the Third Circuit who were sitting by designation. Because their analysis didn't strictly rely on Fourth Circuit law, DeMasters may be viewed as a good predictor of where the Third Circuit will come out on the issue, Pitcher said.

The issue also is currently before the U.S. Court of Appeals for the First Circuit in Pippin v. Boulevard Motel Corp., 1st Cir., No. 15-2011. The EEOC has filed an amicus brief in that case opposing application of the manager rule.

All of which makes Supreme Court review likely at some point in the future, Foreman and Pitcher said, although no one's pressing for high court review at the moment. The Supreme Court rejected a bid for review in Brush , Pocklington noted.

Does Rule Conflict With Title VII Case Law?

Opponents of the rule, and the courts that have rejected it, also maintain that it conflicts with recent decisions by the Supreme Court recognizing broad coverage under Title VII's anti-retaliation provision, most notably Crawford v. Metropolitan Government of Nashville and Davidson County, 555 U.S. 271, 105 FEP Cases 353 (2009) , and Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53, 98 FEP Cases 385 (2006) .

The justices and lower federal courts have been very protective of the right to complain about workplace bias, because the substantive right to be free from discrimination is effectively taken away if an employee who reports discrimination can be subjected to retaliation for reporting it, Foreman told Bloomberg BNA.

Similarly, the courts that have outright rejected or declined to apply the manager rule have found that it's at odds with the incentives the Supreme Court has established for employers to avoid liability under Title VII by taking adequate measures to stop or remediate workplace harassment and to prevent it from occurring in the first place. Under those cases, employers have an affirmative defense against liability for harassment by a supervisor if they can show they implemented the required measures and the complaining employee failed to take advantage of them, and employers can avoid potential punitive damages by showing that the supervisor's actions were contrary to the company's good-faith efforts to comply with Title VII.

If the actions of a manager or other employee tasked with receiving and reporting job bias complaints aren’t protected against retaliation, then the employer can't avail itself of those defenses because its Title VII policies and practices are inadequate, Foreman said.

‘Catch-22' for Managers

Grimes noted that the DeMasters court found that recognition of the manager rule would create a “Catch-22” situation for such employees, by requiring them to choose between fulfilling their job duties and risking possible retaliation, or remaining silent and risking possible employer discipline for failing to carry out their job responsibilities. That's counter to the purpose of Title VII, he said, because the anti-retaliation provision exists to help prevent and remedy workplace harassment and discrimination, “not to foster it.”

But while Pitcher and Pocklington agree that Burlington Northern and Crawford expanded Title VII's protections against retaliation, they see the latter case at least as dealing with a separate issue. In Crawford, the Supreme Court held that an employee who responded to her employer's inquiry during an internal investigation concerning sexual harassment engaged in opposition conduct under Title VII, even though she didn't instigate or initiate the harassment complaint.

For Pocklington, the manager rule is less about courts enforcing a categorical ban against retaliation claims by employees tasked with receiving and reporting workplace bias complaints unless they step outside of that role, and more about courts conducting the analysis that the rule demands. That analysis “can be very fact-specific” and has two essential steps, she said.

First, the court should determine whether the conduct the manager, HR employee or in-house attorney engaged in “really was oppositional for purposes of Title VII,” she said. Second, the court should examine whether that opposition conduct really opposed an employment practice that's unlawful under Title VII. “Just complaining about how the employer handled a complaint hasn't been enough for some courts,” she said.

“Employers shouldn't be held liable just because an HR employee or manager relayed a bias complaint,” Pocklington said. Instead, the manager-rule analysis “should come into play and put parameters around” what is and isn't employer retaliation against these employees, she said.

To contact the reporter on this story: Patrick Dorrian in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at