Is It Your Job To Evaluate Compliance with Corporate EEO Policies? Then You Might Not Be Able to File a Retaliation Claim

Looking through recent Supreme Court denials of certiorari (I have no life), I came across this case, which relates to an uncommon, but important aspect of employment retaliation law. The so-called “manager’s rule” is an key aspect of retaliation practice of which companies should be aware. It’s not found within the anti-retaliation language of the employment laws themselves, but is a result of interpretation by a number of federal circuit courts.  The rule holds that employees are not considered to have engaged in protected activity (a basic requirement for any retaliation case) if they express a disagreement with or oppose the actions of an employer that they consider to be discriminatory, if the opposition occurs as part of their normal job duties. More simply, if the employee’s job is to investigate claims of discrimination or ensure EEO compliance, she is not engaging in protected activity when she disagrees with a management decision or opposes a management action relating to application of EEO that is within the normal scope of her duties.

Typically, these cases arise with management employees in the human resources field, or with managers acting in some type of compliance capacity. For example, a manager who investigates a discrimination claim is not engaging in protected activity for retaliation purposes when she disagrees with the corporate response to her investigation, or challenges the conclusions reached by her supervisors as a result of her investigation, even though she believes that the decision is the result of illegal discrimination.

The manager’s rule bar for these specific types of employees is not absolute, of course. The employee can raise a claim of discrimination on his own behalf, or oppose some type of alleged discriminatory action in which he was not involved, and this would constitute protected activity. But employers should note that manager’s rule bar applies not only to EEO retaliation claims, but also FLSA, USERRA, FMLA, and Sarbanes-Oxley claims. Keep that in mind the next time you face such a complaint from someone who is charged with managing or overseeing employment law compliance in the organization.