Yesterday, the U.S. Equal Employment Opportunity Commission announced that a Pennsylvania-based construction company will pay $50,000 and furnish other relief to settle a retaliation lawsuit.
According to the EEOC, a human resources manager received and subsequently investigated a complaint of sexual harassment against the company’s general manager. The EEOC alleged that her investigation included interviews with women who had previously complained about the general manager.
The EEOC claimed that the complainant subsequently reported the same conduct to the company owner. However, his investigation consisted of asking the general manager (and no one else) about the incident, who denied that it was sexual in nature. Later, the owner expressed dissatisfaction with the HR investigation and rebuked the HR Manager for investigating. He even emailed the HR Manager that the company should discipline the complainant because of her complaint.
According to the EEOC, the final straw was the owner’s decision to reassign the HR Manager’s important job responsibilities to other employees and exclude her from company meetings. As a result, the HR Manager was compelled to resign.
The EEOC alleged retaliation. Indeed, Title VII of the Civil Rights Act of 1964 allows workers to oppose harassment in the workplace without fear of reprisal by their employers. But what about this situation in which the company is ostensibly disciplining the HR Manager for doing her job? It’s harsh, but is it illegal?
Most courts (but not all) say it is. It has to do with something called the “manager rule,” which courts have applied in the context of retaliation claims under the Fair Labor Standards Act to require that an employee step outside their role of representing the company to engage in protected activity. As courts have noted, “it purports to address a concern that, if counseling and communicating complaints are part of a manager’s regular duties, then nearly every activity in the normal course of a manager’s job would potentially be protected activity, and an otherwise typical at-will employment relationship could quickly degrade into a litigation minefield.”
However, some appellate courts, including the Fourth Circuit and Sixth Circuit, have distinguished FLSA and Title VII language and declined to apply the manager rule to the latter. Consequently, an HR Manager could have a tenable claim for Title VII retaliation if the company disciplined them for investigating discrimination complaints and ensuring EEO compliance.
Perhaps that’s why, in this case, a Pennsylvania company agreed to settle with the EEOC for $50,000, and, as a general practice, employers shouldn’t discipline HR for doing its job.