On January 21, 2013, the U.S. Supreme Court denied a request for appeal filed by a former loss prevention specialist who claimed that she had been unlawfully terminated in retaliation under Title VII of the Civil Rights Act of 1964 because she had opposed her employer’s handling of a sexual harassment investigation. Brush v. Sears Holding Corp., 466 Fed. App’x 781, 2012 WL 987543 (11th Cir. March 26, 2012), cert. denied, 2013 WL 215521 (U.S. Jan. 21, 2013) (No. 12-268). The appellant specifically challenged the Eleventh Circuit Court of Appeals’ reliance on the “manager rule” when it affirmed the dismissal of her claim. A majority of circuit courts have adopted some form of the “manager rule,” which has significant impact on the application of Title VII and other claims against employers by management and other personnel charged with performing internal investigations or ensuring compliance with state and federal law.
Under Title VII, employers are prohibited from retaliating against employees who have opposed an unlawful employment practice or because they have participated in an investigation of discrimination. In order to establish a prima facie claim of Title VII retaliation, it is necessary that a plaintiff establish that he or she engaged in such “protected activity.”
Under the so-called “manager rule,” an employee is not considered to have engaged in “protected activity” under Title VII’s anti-retaliation provisions if they disagree with or oppose the actions of an employer in the course of his or her normal job duties. In other words, if it is the employee’s job to investigate claims of discrimination or ensure legal compliance, they are not afforded protection from discharge or other adverse actions for conduct that is within the scope of their employment. For example, a Human Resources employee who disagrees with a corrective action taken pursuant to a discrimination investigation and is later discharged for “insubordination” will not be protected by Title VII’s anti-retaliation provisions. As the name suggests, in most instances, the rule is commonly applied to management employees, but it is also applied frequently to compliance officers and human resources employees.
In order for such an employee to be found to have engaged in a “protected activity,” they must cross the line from being an employee performing their job to an employee making a personal complaint or otherwise opposing an unlawful action, such as by assisting another employee in filing a charge with the EEOC or refusing to carry-out a discriminatory employment action. Merely challenging the method, manner, or adequacy of an employer’s internal investigation or making an internal report of a potential statutory or retaliatory violation is not a protected activity.
An understanding of the “manager rule” is valuable for all employers since it has been accepted by a significant number of circuit courts (the Fifth, Sixth, Eighth, Tenth, Eleventh, and arguably the Ninth) and district courts. Further, its application is not limited to Title VII. In addition to Title VII retaliation claims, the “manager rule” has been applied to claims under the Fair Labor Standards Act, the Americans with Disabilities Act, the Uniformed Services Employment and Reemployment Rights Act, the Family Medical Leave Act, the Sarbanes Oxley Act, and Title IX. In fact, the rule originates from the Tenth Circuit’s decision in McKenzie v. Renberg’s, Inc., 94 F.3d 1478, 1486 (10th Cir. 1996), a FLSA retaliation case.
While the “manager rule” is a useful tool for employers dealing with complaints of retaliation by management or human resources personnel, employers should remember that these employees are still covered by Title VII’s anti-retaliation provisions. Though it is doubtful that such an employee could bring a retaliation claim under Title VII’s participation clause, a management or human resources employee may still have a claim if they complain about an unlawful action in a manner that is not consistent with the scope of their employment, such as by making their own complaint of discrimination or opposing an action that they reasonably believe to be based on unlawful discrimination.