Court Decisions Provide HR Expanded Protection From Retaliation

By Staff Report

Nov. 30, 2015

Human resources leaders should be mindful of a pair of recent federal appellate court decisions that radically empower them to speak out against discrimination within their companies.

These U.S. Courts of Appeals decisions (DeMasters v. Carilion Clinic and Littlejohn v. City of New York) clarify that many employees in HR-type roles (including those in compliance and employee assistance functions) are protected from retaliation when they oppose discrimination within the company — even when reporting or investigating complaints of discrimination is part of their job duties.

HR is often best situated to know about potential discrimination within a company, because it receives and investigates other employees’ reports. These decisions should give HR professionals increased confidence that they can refuse to sweep potential discrimination under the rug without fear of retaliation.

Title VII of the Civil Rights Act of 1964, which prohibits discrimination and retaliation based on race, color, religion, sex and national origin, is the fundamental federal anti-discrimination law. Title VII’s “opposition clause” makes it unlawful for an employer to retaliate when an employee opposes discrimination made unlawful by Title VII.

Until recently, many federal district courts have interpreted Title VII to not protect HR employees from retaliation unless they “step outside” their job duties to make complaints or reports of discrimination. The requirement for employees to “step outside” their duties to be protected, referred to as the “manager rule,” was imported into Title VII jurisprudence from decisions under the Fair Labor Standards Act. The manager rule addresses corporate concerns that companies might face litigation merely because human resources-type employees perform their routine job duties, suffer some undesired personnel action and then allege retaliation.

Before DeMasters and Littlejohn, two of the three federal U.S. Courts of Appeals to rule on the issue (the 10th and 11th Circuits) had agreed with the district courts’ restrictive interpretation of Title VII (although their decisions were unpublished, nonprecedential decisions on which other courts do not rely). This meant that HR employees in many jurisdictions have not necessarily been protected for informing management about complaints of discrimination made by other employees. They also are arguably not protected by Title VII for investigating and validating employees’ complaints of discrimination, even where the HR employee has been outspoken in making the case that discrimination did exist. 

More recently, the 4th Circuit (DeMasters v. Carilion Clinic, Aug. 10, 2015) and the 5th Circuit (Littlejohn v. City of New York, Aug. 3, 2015) rejected the manager rule in the Title VII context. They joined the 6th Circuit, which previously held similarly in Johnson v. University of Cincinnati (June 1, 2010). These decisions give HR employees considerably more freedom to handle complaints of discrimination in the way best calculated to end discrimination within the company.

The plaintiff in DeMasters worked in the company’s employee assistance program. In his EAP role, he learned that another employee had been sexually harassed at work, and the plaintiff conveyed the complaint up the chain.

The plaintiff alleged retaliation for communicating this complaint. The 4th Circuit held that even though counseling other employees and relaying their complaints was part of the plaintiff’s job duties, his complaints could still form the basis for a retaliation complaint under Title VII. In Littlejohn, the plaintiff alleged that in her capacity as the director of its equal opportunity office, she objected to and complained about the company’s discriminatory selection processand its failure to abide by anti-discrimination policies, and suffered retaliation as a result.

While considerably more nuanced than DeMasters, Littlejohnstill gives leeway to HR professionals to express concerns about discrimination without fear of retaliation. The 5th Circuit held that merely conveying or investigating others’ complaints of discrimination is not protected, as it is not the same as opposing them oneself. But actively supporting another employee in asserting his or her rights under Title VII, or complaining about or criticizing an employer’s discriminatory employment practices, is oppositional activity protected by Title VII.

What does this mean in practice? In the wide swath of the country covered by the 4th, 5th, and 6th Circuits (i.e., most of the Atlantic Coastal, Southeastern and Great Lakes states), corporate management must be aware that it could face liability for retaliating against HR employees for raising concerns about discrimination, even where the concerns arise out of employees’ job duties. The pattern may soon extend to other jurisdictions, particularly because the 10th and 11th Circuit pro-manager rule decisions are unpublished and not precedential.

Companies in these jurisdictions — and likely beyond going forward — should revisit their policies and handbooks to ensure they clearly prohibit retaliation against any employee who opposes discrimination, and should consider implementing trainings on this policy. HR employees in these jurisdictions should be aware that they might have a remedy under Title VII if they oppose discrimination and suffer retaliation.

Having a solid HR staff that is willing to be forthright about discrimination when they observe it and willing to fight to stop it is a key tool that allows corporate management to nip problems in the bud and avoid greater liability down the line. The DeMasters and Littlejohn decisions are a crucial step toward achieving that goal.

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