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Fourth Circuit Decides Rule Exempting Certain Management Professionals from Retaliation Lawsuits Not Applicable under Title VII
August 21, 2015
Employers in the Fourth Circuit states of Maryland, North Carolina, South Carolina, Virginia and West Virginia must now be mindful that employees who deal with complaints of discrimination and harassment can point to that work as the basis for a retaliation lawsuit under federal law. The United States Court of Appeals for the Fourth Circuit held that managers who deal with discrimination and harassment issues can bring retaliation claims under Title VII for work they do as part of their job. Judges from the Third Circuit, which governs Pennsylvania, heard the case due to the number of judges who recused themselves. The decision in DeMasters v. Carilion Clinic reversed a district court’s decision and revived the plaintiff’s Title VII case against his former employer.
Title VII prohibits employers from retaliating against employees who have “oppose[d] any practice made an unlawful employment practice” under the law. 42 U.S.C. § 2000e-3(a). Employees who oppose employment actions violating Title VII are said to have engaged in protected activity and are protected from their employer retaliating against them for that activity. In other contexts, courts have adopted the so-called “manager’s rule” that limits the meaning of protected activity for certain employees. Specifically, if an employee’s job duties include investigating claims of discrimination, ensuring legal compliance or, as in the DeMasters case, “counseling and communicating [employee] complaints,” these employees will not be considered to have engaged in protected activity if they oppose the employer’s action while performing these job duties. The rule is commonly applied with other federal laws with anti-retaliation provisions, especially the Fair Labor Standards Act (“FLSA”).
In DeMasters, the district court had dismissed DeMasters’ complaint because, among other reasons, it found that his alleged protected activity—counseling an employee about his complaints of sexual harassment and communicating those complaints to Carilion’s HR department—was “within the scope of his job duties.” The district court concluded that, under the manager’s rule, DeMasters was not protected under Title VII’s anti-retaliation provisions because his alleged protected activity was within his required job duties.
The Fourth Circuit disagreed and refused to apply the manager’s rule to a Title VII claim. The court of appeals noted that, although other courts commonly apply the manager’s rule to FLSA claims, Title VII’s anti-retaliation provision was significantly different from the FLSA’s provision. The court of appeals found that Title VII prohibits a greater breadth of employment practices relating to retaliation than the FLSA. According to the court of appeals, this breadth of prohibited practices indicated that Congress did not intend to exempt certain employees from anti-retaliation protection based on their job duties. Thus, the court of appeals concluded that the manager’s rule does not apply to Title VII claims.
You may have heard of courts applying the manager’s rule in other contexts to find that employees are not protected from retaliation for opposing an employer’s alleged unlawful practices while performing the work required for their job. In the context of Title VII, the Fourth Circuit’s decision is clear that an employee’s opposition to discriminatory practices or harassment is protected under Title VII even if the employee opposes the practices or harassment as part of the work for his or her job.   
When do employers need to be worried about this? What seemed to bother the court in DeMasters was the allegation that the employer had dressed DeMasters down for
  1. telling the employee he was the victim of sexual harassment; and
  2. not being “pro-employer.” 
The main takeaway is that employees who investigate claims of harassment and discrimination need to be able to do their jobs without fear of reprisal if they make a decision that goes against the company. That may seem self-evident, but the concern for employers is they will now need to consider if an HR employee recently determined that sexual harassment or discrimination occurred if they want to discipline that employee for unrelated reasons. Consider also a scenario like what occurred in DeMasters, where a counselor was working with an employee and helped the employee complete an internal complaint of sexual harassment (and later allegedly spoke to the HR department about their handling of the complaint). Those actions, even though part of the person’s job duties, are protected under Title VII in the Fourth Circuit.
If you have any questions about this issue, or any other labor and employment issue, please contact us.
Labor & Employment Law Mitchell J. Rhein