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.