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Mar 2013
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March 12, 2013

'Manager Rule' Doesn't Protect Dissenting Worker


Title VII prohibits employers from discriminating based on an employee’s race, color, religion, sex or national origin. Four years ago, the U.S. Supreme Court’s decision in Crawford v. Metropolitan Government of Nashville & Davidson County, Tenn., broadened the protection under Title VII. The Court held that Title VII also protects employees who oppose unlawful discrimination or harassment. 

But the courts have created a limitation that excludes retaliation protection for employees whose “opposition” to alleged discrimination falls within the scope of their duties.  This limitation is called the “manager rule.” Thus, to engage in protected activity under Title VII, the employee must cross the line from being an employee performing his or her job to an employee lodging a personal complaint.

The Case

A recent action by the U.S. Supreme Court demonstrates that the manager rule is alive and well in several jurisdictions across the country. Although the rule doesn’t completely insulate employers from Title VII violations, it does permit employers to choose their own voluntary compliance mechanisms without being subject to retaliation claims from employees who disagree.

On January 21, 2013, the Court refused to consider whether the Eleventh Circuit properly applied the manager rule.

The Facts

The plaintiff, Janet Brush, was a loss prevention district coach for Sears. She was responsible for conducting investigations of sexual harassment allegations. In 2007, a female employee alleged that she had been raped multiple times by another employee. The female complainant asked that neither her husband nor the police be notified of the rape. Sears terminated the harasser, but did not report the incidents to the police, citing the investigation’s incomplete status and the complaining employee’s desire not to involve law enforcement. Brush, however, insisted that Sears inform law enforcement of the alleged rape.

After the investigation was complete, Sears fired Brush. Sears contended that Brush violated company policy governing the conduct of sexual harassment investigations. Specifically, Brush met with the complainant alone, which was prohibited; suggested that she had been raped instead of asking an open-ended question; and publicly criticized the way Sears handled the investigation.

The Court’s Analysis

After her termination, Brush sued Sears, alleging retaliation under Title VII. Brush argued that her disagreement with the way the investigation was handled was “protected activity” under Title VII because she opposed the unlawful sexual harassment of the female complainant. Brush contended that an investigative manager’s role in reporting a Title VII violation necessarily qualifies as protected activity. The U.S. District Court for the Southern District of Florida and the Eleventh Circuit disagreed.

Applying the manager rule, the Eleventh Circuit held that a management employee does not engage in protected activity when, in the course of normal job performance, the employee “disagrees with or opposes the actions of an employer.” Brush was neither the aggrieved nor the accused party in the underlying allegations so she had no personal complaint. Rather, she was merely an employee tasked with conducting the internal investigation. And in her capacity as the investigator, Brush informed Sears of the allegations, investigated those allegations and reported the investigation results to Sears. Those were Brush’s job responsibilities. Her disagreement with Sears’ procedures and Sears’ refusal to report the rape to law enforcement did not equate to opposing discriminatory practices.

Indeed, the court recognized that protecting Brush under Title VII would result in a gross and undesirable expansion of Title VII protection. The court noted that doing so would extend protection “not just to those directly impacted by workplace discrimination but to all individuals involved in the investigation of that discrimination, no matter how far distant.”  The court was unwilling to open these flood gates. Accordingly, it concluded that Brush failed to state a retaliation claim under Title VII.

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