Second Circuit (Sort of) and Fourth Circuit (Completely) Refuse to Apply “Manager Rule” to Title VII Retaliation Claims
The so-called “manager rule” addresses a concern that employers may face a “litigation minefield” if a manager whose very job duties required them to report discrimination complaints could later sue for retaliation if they were adversely affected by the making of that report. Employers argue that the manager is not really “opposing” a discriminatory practice sufficient to invoke Title VII’s anti-retaliation protections, when they are in essence just doing the job the employer assigned them. Last month, the Second Circuit (in Littlejohn v. City of New York) and Fourth Circuit (in DeMasters v. Carilion Clinic) addressed the “manager rule,” and while both courts rejected its application, the Second Circuit did adopt a somewhat employer-friendly variation. A brief discussion of these cases and their implications for the manager rule follows below.
The plaintiff in Littlejohn was an African-American and the Director of an EEO Office of a city agency, which required her to, among other things, investigate employee discrimination complaints, organize diversity activities and advise staff on EEO policy. She alleged that the city agency demoted her to a non-managerial, lower-paying position and replaced her with a less qualified white employee after she complained about (i) the agency’s failure to conduct an adverse impact analysis during a reduction in force exercise, (ii) the lack of diversity in certain roles; and (iii) pay disparities between African-American and white male workers.
The DeMasters Plaintiff, an Employee Assistance Program or EAP counselor, claimed he was fired after assisting an employee in pursuing a complaint against a supervisor for sexual harassment, because he did not take a “pro-employer side” or act within his employer’s best interests.
Both sued claiming, among other things, a violation of Title VII’s anti-retaliation provision prohibiting retaliation against employees opposing a discriminatory practice. The District Court in each case dismissed their retaliation claims (albeit for different reasons).
The Manager Rule Does Not Apply Says Second and Fourth Circuits
Beginning with the Fourth Circuit’s DeMasters’s opinion first (which was actually issued by a panel of Third Circuit judges sitting by designation), it held that the manager rule simply does not apply to Title VII retaliation cases. A result to the contrary, the Fourth Circuit said, would actually discourage employees like the plaintiff from reporting discrimination complaints for fear of losing their job and make it more likely discrimination would go unremedied. The only requirement the manager had in order to invoke Title VII’s anti-retaliation protections was to make sure that the manner in which he or she opposed the discriminatory practice was “reasonable” (i.e. the manner of opposition is not so disruptive that it significantly interferes with the employer’s legitimate business concerns).
The Second Circuit also rejected the application of the manager rule finding that it focused on one’s job duties rather than the “oppositional nature” of the employee’s complaints, and therefore it was inapposite to Title VII retaliation cases. But a closer reading of the Second Circuit’s opinion however, shows that it did not reject the rule in its entirety. The Second Circuit held that employees whose jobs involve reporting or investigating discrimination complaints, like the plaintiff in Littlejohn, are not protected through the very act of reporting or investigating by itself because “merely to convey others’ complaints of discrimination is not to oppose practices made unlawful by Title VII.” However, if that same employee actively supports other employees in asserting Title VII rights, or if that employee personally complains or is critical about the employer’s discriminatory employment practices, Title VII’s anti-retaliation provision will protect them.
Title VII retaliation litigants in the Fourth Circuit should note that the manager rule is not viable. Workplace discrimination watchdogs enjoy the same protection against retaliation as the rest of the workforce.
Relatedly, because of the peculiar circumstance of the Third Circuit judges sitting by designation in DeMasters, litigants in the Third Circuit should expect a similar outcome.
The Second Circuit for all intents and purposes kept some version of the manager rule in place – mere reporting will not provide protection against discrimination; rather something more is needed; the employee must actively support the employee in asserting their rights or otherwise personally be critical of or complain to the employer about its discriminatory practices. This, of course, may prove difficult to distinguish in practice as employees often may act in an advocacy role when assisting others with reporting their discrimination complaints, or they may appear to take a critical stance when monitoring and evaluating workplace discrimination policies. However, the Second Circuit has at least given employers a leg to stand on when litigating this issue.
At least one other circuit court – the Sixth Circuit – has likewise rejected the application of the manager rule. The Eight and Tenth Circuits meanwhile have permitted its application (although those were “non-precedential” decisions). We’ll see if a continued split on this issue eventually makes its way up to the Supreme Court.
The manager rule had its origin in Fair Labor Standards Act retaliation cases, where it remains viable.