FLSA 'Manager Rule' Doesn't Apply to Title VII Cases

An employee whose job responsibilities include reporting discrimination claims on behalf of co-workers may seek protection under the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964, the 4th U.S. Circuit Court of Appeals ruled. The court in this case held that the “manager rule,” a principle derived from Fair Labor Standards Act (FLSA) cases but applied with increasing frequency in Title VII decisions, “has no place in Title VII enforcement.” The court reversed the district court’s dismissal of a lawsuit brought by an employee assistance program (EAP) consultant for retaliation after he opposed the company’s response to another employee’s claims of sexual harassment.

The manager rule provides that employees who oppose their employer’s actions on behalf of another employee in accordance with their job duties have not engaged in a protected activity sufficient to support a retaliation claim. Rejecting the argument that the manager rule prevents “litigation minefield[s],” and explaining that protected activity under the FLSA is statutorily more constricted than that of Title VII, the court concluded that the manager rule does not apply in Title VII cases.

According to the 4th Circuit, the manager rule runs counter to the “spirit and purpose behind Title VII as a broad remedial measure.” The court specifically noted that “under [a pro-manager rule] approach, the categories of employees best able to assist employees with discrimination claims—the personnel that make up EAP, HR and legal departments—would receive no protection from Title VII if they oppose discrimination targeted at the employees they are duty-bound to protect.”

The court noted that its opinion does not affect the analysis of the manager rule in FLSA retaliation cases.

Applying these aforementioned principles, the court ruled that J. Neil DeMasters, an EAP consultant for Carilion Clinic, qualified for anti-retaliation protection under Title VII after he supported a fellow employee’s sexual harassment complaint and criticized the employer’s investigation into the complaint. DeMasters claimed he was retaliated against in violation of Title VII when his employer later terminated him for failing to take the “pro-employer side.” The 4th Circuit reversed the district court’s dismissal of DeMasters’ suit and found that the manager rule did not strip DeMasters of Title VII anti-retaliation protection, notwithstanding DeMasters’ duty as an EAP employee to relay his co-workers’ complaints.

The opinion also expanded upon what constitutes oppositional activity under Title VII. The court explained that the analysis of “protected activities” requires a continuous, totality of the circumstances approach, rather than examination of discrete incidents, to determine whether the plaintiff’s course of conduct as a whole 1) communicates to the employer a belief that the employer has engaged in a form of employment discrimination, and 2) concerns subject matter that the employee reasonably believes to be unlawful under Title VII.

In formulating this analysis, the court specifically rejected the district court’s conclusion that as an EAP consultant, DeMasters did not complain “himself of workplace discrimination or other unlawful employment practices,” but “merely ferry[ed]” another employee’s allegations to Carilion’s human relations department. Holding that DeMasters’ communications with Carilion, on the whole, constituted protected activity, the court declined to distinguish between DeMasters’ support for his co-worker’s sexual harassment complaint and DeMasters’ own criticism of the way Carilion handled the investigation. Accordingly, the decisionclarified that protected activity need not be limited to complaints of personal discrimination, so long as the employee communicates his belief that the employer engaged in some type of unlawful discrimination.

DeMasters v. Carilion Clinic, 4th Cir., No. 13-2278 (Aug. 10, 2015).

Professional Pointer: Be aware that EAP, human resources and other management personnel, whose job duties include relaying complaints of harassment or discrimination on behalf of other employees, may be protected by Title VII’s anti-retaliation provision.

Amy Pocklington and Lindsey Strachan are attorneys in the Richmond office of Ogletree Deakins, a labor and employment law firm representing management.