Are Managers that Investigate Discrimination Protected From Retaliation?

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)

Supreme Court Clarifies Standard for Supervisor Liability in Harassment Cases

Under Title VII, an employer may be liable for the workplace harassment of employees that is based on sex, race, religion or national origin.   The standard for liability often begins with the employment position of the alleged harasser.  When the harasser is a co-worker, a plaintiff must show that the company had knowledge of continuous and pervasive harassing behavior and failed to take remedial action.  Additionally, an employer can defend a claim by proving that an employee failed to utilize available corrective measures such as an internal HR complaint procedure.

However, when the alleged harasser is a supervisor, the standard for liability changes if the supervisor takes a tangible, adverse action against an employee.  In such cases, an employer may be vicariously liable for the conduct of its supervisors.  In Vance v. Ball St. University (April 2013), the U.S. Supreme Court provides clarification regarding the very definition of a supervisor under Title VII.    In a 5-4 decision, Vance holds that an employee is a supervisor “if he or she is empowered by the employer to take tangible employment actions against the victim, i.e., to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”   Inversely stated, a supervisor is not someone who merely has some nebulous authority to instruct or direct another person in the performance of their duties.