HR Functions Can Be Protected Activity Under Title VII

By Shawn M. McLain and Kevin J. Lorenz August 18, 2021

​Employees are engaged in activity protected by Title VII of the Civil Rights Act of 1964 when they investigate discrimination complaints and enforce equal employment opportunity policies, even if those tasks are part of their job duties, the 6th U.S. Circuit Court of Appeals concluded.

The employer hired the employee in March 2016 to be its director of human resources. The employee investigated several pending internal discrimination complaints and negotiated a severance agreement related to those complaints. 

The employee also noticed that equal employment opportunity plans (EEOPs) for vendors and contractors were expired, and she was concerned some of the employer's directors were conducting business with vendors before the vendor's EEOPs were approved. In response to these concerns, the employee modified the process of approving EEOPs and opposed acceptance of vendor contracts without approved EEOPs.

The employee's supervisor began receiving complaints about the employee's communication style with other employees, vendors and union representatives. The employee was described as abrasive and difficult to work with. The employee was terminated in October 2016 but was not given a definitive reason for her termination.

The employee filed a lawsuit against the employer and claimed she had been retaliated against in violation of Title VII and Michigan state law when she was discharged for addressing charges of discrimination that had been previously ignored and for telling the employer's board members that they were violating EEO policies when hiring contractors. She also claimed wrongful termination in violation of state law.

The trial court ruled for the employer, stating the employee was only engaged in her regular job duties; the employee's supervisor had supported the employee's efforts; the employer had a legitimate, nondiscriminatory, non-pretextual reason for the employee's termination; and the employee could not prove causation. However, the 6th Circuit reversed.

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An individual investigating a discrimination complaint and ensuring EEO compliance is engaged in activity protected from retaliation by Title VII, according to the appeals court. When the employee conducted the investigation, expressed her concerns about the results to management, arranged for a discriminating employee's administrative leave and negotiated that employee's severance agreement, she was taking reasonable action to oppose unlawful discrimination. That action was sufficient to establish she was engaged in protected activity under Title VII.

The employee also engaged in protected activity when she objected to the employer's conduct that she believed was in violation of EEO policies and when she began modifying policies in response to her concerns.

In addition, the 6th Circuit indicated that the supervisor's approval of the employee's policy modifications had no bearing over whether the employee's activity was protected. Approval of the employee's work would only go to the question of causation.

In arriving at its conclusions, the court noted that Title VII does not state that the employee's conduct must fall outside of their regular job duties. The court also expressed concern about narrowing the scope of Title VII protections.

Jackson v. Genesee Cty. Rd. Comm'n, 6th Cir., No. 20-1334 (May 27, 2021).

Professional Pointer: Under the reasoning of this case, many employees may be protected from retaliation under Title VII if they are engaged in job duties that involve internal investigations or if they actively modify and enforce internal policies that address EEO compliance. Employers should be cautious when considering adverse employment actions against individuals, such as HR professionals, engaged in those duties.

Shawn M. McLain and Kevin J. Lorenz are partners at McMahon Berger PC, the Worklaw Network® member firm in St. Louis.



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