Are Managers that Investigate Discrimination Protected From Retaliation?

Posted on by

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)

Can You Draw Unemployment Benefits if You Resign From Your Job?

Posted on by

If you quit or otherwise leave a job voluntarily, an employee must prove “good cause” in order to receive unemployment benefits. However, an employee who is forced to resign is not deemed to have left work voluntarily when the employee had no real option to return to the job.


By statute, “good cause” does not include leaving work to become self-employed or to accompany a spouse to a new locality (unless it relates to a military transfer). General dissatisfaction with a job is not good cause. To establish “good cause,” the employee must show (1) that he or she suffers from an objectively reasonable job dispute or other conflict that serves as a necessary and compelling reason to leave employment; and (2) that he or she has exhausted all steps to resolve any conflict that would be taken by a someone desirous of retaining their employment. For example, an employee who is troubled by a conflict with a co-worker first would be expected to pursue some resolution by reporting the behavior to a supervisor or human resource office.


“Good cause” is determined on a case-by-case basis, but may include situations such as severe harassment or discrimination, non-payment of wages or significant cuts in pay, illegal or unsafe working conditions, family care obligations, or personal medical reasons. However, if your medical condition prevents you from working for any employer, you will not meet the VEC’s other requirement that you are otherwise available for work. When dealing with medical conditions that impact work ability, an employee first should consult with their physician prior to leaving a job. The VEC is more likely to accept a medical cause if your physician advised that your current position was not suitable due to physical or mental limitations.


If you are denied unemployment benefits, you have the right to appeal your claim and present your case at a hearing before an appeals examiner. You also have the right to be represented by an attorney at this hearing.

Blue Penciling of Non-Competes in Virginia?

Posted on by

Non-competition agreements, AKA non-competes, are presently enforceable in Virginia provided that they are drafted in terms that are reasonable with regard to duration, geography and scope.  [Update: Virginia law now limits non-competes to employees meeting higher wage thresholds. 2020]. When a non-compete is facially unreasonable because it is vague or overbroad with regard to one of those components, Virginia Courts will refuse to enforce the entire restrictive covenant.

Enter the concept of “Blue Penciling …  Blue Penciling is a practice where a Court can in effect redraft or “limit” unreasonable terms of an agreement in a manner that would make the agreement otherwise acceptable and enforceable.  Virginia Courts have never endorsed this practice, though it is permitted in other states.  As a result, Virginia employers typically do not get a second chance to reform an unreasonable agreement.

Enter the concept of “Choice of Law” …  Virginia law does permit contracting parties to elect or choose the law of the State that applies to their contract, provided that it does not offend Virginia public policy.   In the case of Edwards Moving and Rigging, Inc. v. W.O. Grubb Steel Erection, Inc., the Richmond U.S. District Court was presented with a non-competition agreement that stipulated to the application of Kentucky law – a State that does permit Blue Penciling.   While the Court was not asked to reform the agreement in the context of a 12(B)(6) Motion to Dismiss, it did hold that Kentucky’s Blue Penciling policies were not repugnant to the public policies of Virginia, thereby opening the possibility that a Virginia Court could consider Blue Penciling at a later stage in application of Kentucky law.

Supreme Court Clarifies Standard for Supervisor Liability in Harassment Cases

Posted on by

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.

Does the FMLA Provide for a”Light Duty” Return to Work?

Posted on by

The Seventh Circuit recently addressed the interplay of FMLA and “light duty” restrictions in James v. Hyatt Regency Chicago (7th Cir., 2013).   In James, the plaintiff suffered from a visual condition and subsequent eye injury that prompted surgery and an associated request for Family Medical Leave (FMLA).   After his 12 weeks of FMLA expired, the employee requested to return to work in a light duty capacity that would eliminate some essential functions of his position.  When the employer could not accommodate his request, the employee nonetheless remained on leave based upon the terms of his union’s collective bargaining agreement.  Ultimately, the employee returned to work but still sued under the FMLA, contending that the employer failed to promptly reinstate him in accordance with his physician’s restrictions.

At the conclusion of an FMLA period, the FMLA requires that an employer reinstate the employee to his prior position or “an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.” The Seventh Circuit affirmed that the FMLA does not require an employer to return an employee to his position if that employee cannot perform an essential function of the job. 29 C.F.R. § 825.214(b).  As otherwise stated, there is no such thing as obligatory light duty under the FMLA.   (Note, other laws such as workers’ compensation and ADA statutes may impose different light duty obligations depending on the facts of each individual case.)