A little known amendment to the Virginia code now affords employees a new basis for job protection in the event they are compelled to attend court for an unlawful detainer or eviction. It is now unlawful for an employer to “discharge [an employee] from employment or take any adverse personnel action against him as a result of his absence from employment due to appearing at any initial or subsequent hearing on such summons, provided that he has given reasonable notice of such hearing to his employer.” Although the statute does not specify a private cause of action, the established policy could be cited as a basis for wrongful discharge under Virginia common law, also known as a Bowman claim.
In addition to prohibiting job discrimination on the basis of race, color, religion, sex, or national origin, Title VII contains an Opposition Clause to protect workers from retaliation for advancing claims under the statute. Typically, the Courts have defined “opposition” broadly to include a variety of conduct in opposition to unlawful employment practices, including both formal grievances and informal complaints. In Demasters v. Carilion Clinic, the Fourth Circuit recently considered whether a manager, who failed to support a pro-management position in another employee’s sexual harassment complaint, himself engaged in protected opposition under Title VII.
At issue in DeMasters is the proper application of the “manager rule,” a doctrine applied by some courts that requires an employee to be acting outside of a management role in order to engage in protected activity. When applied, managers that routinely accept, investigate or evaluate complaints of other employees are not participating in protected activity when performing their regular job duties. After consideration, however, the Fourth Circuit rejected a per se extension of the “managers rule” to Title VII, holding that “the only qualification placed upon an employee’s invocation of protection from retaliation under Title VII’s Opposition Clause is that the manner his opposition must be reasonable.”
Demasters v. Carilion Clinic (Fourth Circuit, August 10, 2015)