Protection from Retaliation: Not Always Guaranteed for HR

Protection from retaliation may require HR professionals to oppose management.

By Avi Kumin and Andrew Schroeder Apr 18, 2017
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Illustration by Dale Glasgow for HR Magazine

​Many HR professionals are surprised to learn that legal protection from retaliation isn’t always guaranteed for them. Of course, it is illegal under federal and state laws to retaliate against employees—including those in HR—who complain that they have suffered discrimination or harassment or who witness a fellow employee being subjected to the same. 

But while HR professionals would be protected from retaliation for filing their own discrimination claims, until recently HR professionals haven’t always been protected from retaliation for opposing discrimination against another employee as a result of conducting an HR investigation or performing other routine job duties. 

To be protected from retaliation under anti-discrimination laws, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act and the Americans with Disabilities Act, employees are required to have opposed unlawful discrimination or to have participated in an official Equal Employment Opportunity Commission or court proceeding. Courts increasingly are ruling that HR professionals’ opposition to unlawful discrimination is protected, even when it is part of their job duties. 

Manager Rule

In some employment contexts, such as cases involving the Fair Labor Standards Act, courts have barred retaliation claims based on the application of the so-called manager rule, which states that managers will not be viewed as having engaged in legally protected conduct if they disagree with or oppose the actions of an employer in the course of their normal job responsibilities. 

A number of early cases applied this rule to the context of retaliation claims under discrimination laws. Because HR professionals are routinely involved in others’ discrimination and harassment complaints—whether fielding employees’ grievances, alerting others to concerning situations, examining a complaint or reporting the findings of an investigation to a superior—they were unprotected from retaliation in these cases.

The manager rule is intended to give employers the option to discipline certain employees who might otherwise have blanket protection, since troubleshooting employee complaints is part of managers’ everyday responsibilities. If all core compliance duties were protected by law from retaliation, employers might argue, HR practitioners would effectively be immune from discipline. On the other hand, categorizing all reports of discrimination by HR as unprotected would expose HR professionals to unfettered retaliation, employee advocates claim.

[SHRM members only resource: Nondiscrimination/Anti-Harassment Policy and Compliant Procedure]

Opposing Unlawful Conduct

Increasingly, however, courts are finding that the manager rule does not apply in retaliation cases brought under discrimination laws. Instead, they are focusing on the nature of employees’ opposition to discrimination. What this means is that HR will not be automatically excluded from anti-retaliation protections simply because there is some overlap with their official duties and the potentially protected conduct.

An HR professional who says, ‘We should offer her a settlement to protect the company from a lawsuit’ or ‘It would be bad for company morale to terminate this employee’ will probably be seen as having acted in the interests of the company.

In these emerging cases, courts have made clear that the relevant inquiry is: Did the HR professional oppose discriminatory conduct made unlawful by the relevant statute? Employees who are not taking actions that amount to opposition may continue to be unprotected. To avoid being categorized that way, HR should:

  • Speak in terms of violations of the law, as opposed to transgressions of company policy. Disassociating oneself from the company’s position—for example, saying “I think that discrimination occurred and that the company is taking the wrong position”—is likely to be viewed as opposition.
  • Advocate for the employee rather than the company. An HR professional who says, “We should offer her a settlement to protect the company from a lawsuit” or “It would be bad for company morale to terminate this employee” will probably be seen as having acted in the interests of the company. By contrast, an HR professional will likely be viewed as opposing unlawful conduct if he or she says, “I disagree with the suggested approach on this. I think this employee was subjected to discrimination and that we need to do more to correct this situation.” 

Difficult Position

Admittedly, HR professionals find themselves in a difficult position if they are seeking legal protection from retaliation, since the very conduct that could make it clear that they engaged in legally protected activity could antagonize superiors or company attorneys. Such behavior makes the business more vulnerable to discrimination claims and a retaliatory response against HR more likely. 

After all, it is much more likely that a company official will become upset by an HR professional’s actions if he or she is acting in a manner viewed as potentially adverse to the business, rather than simply toeing the company line. HR professionals must therefore balance their desire for legal protection against not wanting to ruffle too many feathers.

A few courts have gone a step further, suggesting that even the performance of HR duties that some might view as routine may constitute protected opposition conduct, such as in cases where an HR professional investigates employees’ allegations, concludes that there was indeed discrimination and recommends corrective action. It will be interesting to see how these cases play out. 

This uncertainty will present challenges not only for HR professionals but also for the HR directors and other executives who supervise them. At a minimum, make sure you understand that, in some situations, the law may protect employees from retaliation based on activities that are closely related to their normal job duties. HR directors must therefore ensure that the members of their team who handle employees’ legal complaints do not face retaliation for their efforts to prevent or correct discrimination..

Avi Kumin and Andrew Schroeder are attorneys with Katz, Marshall & Banks, an employee-side law firm in Washington, D.C. 

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