Can you fire an HR Manager for encouraging co-workers to sue the company for discrimination?

Good thing I added a few extra servers today, juuuuuuuust in case I had a few extra clicks on this blog post. Last week, the Eleventh Circuit Court of Appeals wrote 150 pages (here) to address the retaliation of claims of an HR representative (let’s call her “Plaintiff”). She claimed that her former employer (whom we’ll call “Defendant”) retaliated against her twice.

First, Defendant allegedly retaliated against Plaintiff by ending her employment for filing a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission. Second, the same termination of employment was supposedly retaliation for Plaintiff encouraging a co-worker to sue Defendant.

Not for complaining to the EEOC.

I’ll dispense quickly with the first claim. There is no dispute that an HR representative has every right to oppose actions that an employer directs against the HR Representative that s/he believes to be discriminatory. And, yes, it is unlawful to terminate that HR representative for complaining about discrimination; e.g., by filing an EEOC Charge.

But, no, Defendant did not fire Plaintiff because s/he filed an EEOC Charge.

Yes, for encouraging others to join her.

Rather, Defendant conceded that it fired Plaintiff because it learned that she encouraged a few co-workers to also sue Defendant for discrimination. Plaintiff even tried to get her co-workers to hire the same law firm to sue the company.

So, did Defendant violate a federal anti-discrimination law like Title VII of the Civil Rights Act of 1964, for example?

According to the Eleventh Circuit Court of Appeals, the answer is no. Here’s why:

[A]n employee’s oppositional conduct under Title VII is not protected if the means by which the employee has chosen to express her opposition so interferes with the performance of her job that it renders her ineffective in the position for which she is employed.

Actually, there’s a little more to it than that. That is, the employer must believe that the employee’s actions preclude her from doing her job:

[Defendant] held a good faith belief that [Plaintiff] had abandoned her responsibility to try to resolve an employee’s dispute without litigation when she instead actively solicited a complaining employee to sue the company and provided the employee with the name of an attorney to use. Once aware of [Plaintiff]’s conduct, [Defendant] determined it could no longer keep her as its Manager of Team Relations, the department to which unhappy employees were sent to air their complaints. In other words, [Defendant] could no longer trust [Plaintiff] to do her job.

Stated another way, [Defendant] did not fire [Plaintiff] because she opposed some of its employment practices. [Plaintiff] had expressed her opposition to various employment practices repeatedly throughout her tenure through internal complaints to management, with no adverse action taken against her for that opposition. Rather, [Defendant] fired [Plaintiff] because, by recruiting [a co-worker] to sue the company, [Plaintiff] chose to act in a way that conflicted with the core objectives of her sensitive and highly important position. Her actions having rendered her entirely ineffective as manager of the Team Relations department, the manner of her oppositional conduct with respect to [the co-worker] was necessarily unreasonable, and the conduct was not protected under Title VII.

Case dismissed. Defendants wins.

Takeaways.

Your mileage may vary. This is an Eleventh Circuit decision. While other Circuits have adopted the same rationale, others may not. Plus, other courts may construe state and local anti-discrimination laws differently. But, don’t let it come to this. From Plaintiff’s standpoint, Defendant did not take her complaints of discrimination seriously enough. Indeed, Defendant went so far as to require Plaintiff to execute a sort of loyalty pledge. (Check out the footnote on page 11 of the opinion). No wonder she and others sued. One big way to mitigate the risk of a discrimination lawsuit is to take seriously any underlying internal complaints of discrimination.

Ultimately, I don’t envy the HR balancing act. But, you can be an effective team builder by fostering a culture of inclusivity where employees feel empowered to speak freely about ways to improve the workplace. Among other things, you’ll have the opportunity to address those issues before they morph into lawsuits.