CERTIFICATE
OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT................................. C-1
TABLE OF AUTHORITIES.................................................................... iii
STATEMENT OF INTEREST................................................................. 1
STATEMENT OF THE ISSUE................................................................ 1
PERTINENT STATUTORY PROVISIONS........................................ 2
STATEMENT OF THE CASE................................................................. 2
A. Factual Background............................................................... 2
B. Procedural Background......................................................... 4
SUMMARY OF THE ARGUMENT....................................................... 5
ARGUMENT................................................................................................. 7
This Court should not import the manager rule from the FLSA context
to deprive management and human resources officials of the full scope of
protection offered by Title VII’s opposition clause........ 7
A. The
opposition clause of Title VII’s antiretaliation provision offers employees
broad protection................... 7
B. Regardless
of its validity in the FLSA context, the manager rule has no place in cases
involving Title VII’s opposition clause................................................................. 10
1......... The
manager rule appears nowhere in the text of Title VII..................................................................... 11
2......... The
manager rule undercuts Title VII’s objectives................................................................... 15
3......... Numerous
other courts of appeals have rejected the invitation to apply the manager rule
in Title VII cases, and none has affirmatively endorsed the rule in a published
decision............................. 17
4......... Application
of the manager rule to Title VII cases is unsettled in this Circuit, and Brush,
an unpublished decision of this Court, is unpersuasive.............................................................. 19
5......... Existing
protections are sufficient to protect employers from unmeritorious retaliation
claims under Title VII......................................................... 21
CONCLUSION........................................................................................... 23
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
ADDENDUM
Page(s)
Cases
Berg v. La Crosse Cooler Co.,
612 F.2d 1041 (7th Cir. 1980).................................................. 15
Brush
v. Sears Holding Corp.,
466 F. App’x 781 (11th Cir. 2012)......................... 4, 12, 20, 21
Burlington
Indus., Inc. v. Ellerth,
524 U.S. 742 (1998)................................................................... 16
Burlington
N. & Santa Fe Ry. Co. v. White,
548 U.S. 53 (2006)............................................................... 15,
16
Collazo
v. Bristol-Myers Squibb Mfg., Inc.,
617 F.3d 39 (1st Cir. 2010)................................................ 14,
18
*Crawford
v. Metro. Gov’t of Nashville & Davidson Cnty.,
555 U.S. 271 (2009).................................................. 7, 12, 14,
21
*DeMasters
v. Carilion Clinic,
796 F.3d 409 (4th Cir. 2015).............................................. passim
Dixon
v. Hallmark Cos.,
627 F.3d 849 (11th Cir. 2010).................................................... 9
EEOC
v. Abercrombie & Fitch Stores, Inc.,
575 U.S. 768 (2015)............................................................. 13,
22
EEOC
v. HBE Corp.,
135 F.3d 543 (8th Cir. 1998).................................................... 19
EEOC
v. New Breed Logistics,
783 F.3d 1057 (6th Cir. 2015).................................................... 7
EEOC
v. Total Sys. Servs., Inc.,
221 F.3d 1171 (11th Cir. 2000).................................................. 7
*Gogel
v. Kia Motors Mfg. of Ga., Inc.,
967 F.3d 1121 (11th Cir. 2020) (en banc)........................ passim
Hagan
v. Echostar Satellite, L.L.C.,
529 F.3d 617 (5th Cir. 2008)............................................. 22,
23
Harrison
v. Benchmark Elecs. Huntsville, Inc.,
593 F.3d 1206 (11th Cir. 2010).................................................. 8
*Jackson
v. Genesee Cnty. Rd. Comm’n,
No. 20-1334, 2021 WL 2155045, -- F.3d -- (6th Cir. May 27, 2021)....................................................................................... passim
Jefferson
v. Sewon Am., Inc.,
891
F.3d 911 (11th Cir. 2018).................................................... 2
Johnson
v. Univ. of Cincinnati,
215 F.3d 561 (6th Cir. 2000)............................................. 16,
17
Kolstad
v. Am. Dental Ass’n,
527 U.S. 526 (1999)................................................................... 16
*Littlejohn
v. N.Y.C.,
795 F.3d 297 (2d Cir. 2015).................................. 13, 17, 21, 22
Mamani
v. Berzain,
825 F.3d 1304 (11th Cir. 2016)................................................ 13
McKenzie
v. Renberg’s Inc.,
94 F.3d 1478 (10th Cir. 1996).................................................. 11
Merritt
v. Dillard Paper Co.,
120 F.3d 1181 (11th Cir. 1997)......................................... 12, 13
Pippin
v. Boulevard Motel Corp.,
835 F.3d 180 (1st Cir. 2016)..................................................... 18
Robinson
v. Shell Oil Co.,
519 U.S. 337 (1997)................................................................... 15
Rosenfield
v. GlobalTranz Enters., Inc.,
811 F.3d 282 (9th Cir. 2015).................................................... 11
Smith v.
Sec’y of the Navy,
659 F.2d 1113 (D.C. Cir. 1981)....................................................................... 18
Thompson v.
N. Am. Stainless, LP,
562 U.S. 170 (2011)........................................................................................... 16
Weeks v.
Kansas,
503 F. App’x 640 (10th Cir. 2012).................................................................. 18
Statutes
Fair
Labor Standards Act, 29
U.S.C. §§ 203 et seq................ passim
29 U.S.C.
§ 215(a)(3)................................................................. 14
Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et seq............................................................................................ passim
42 U.S.C. § 2000e(f)................................................................... 13
*42 U.S.C. § 2000e-3(a)....................................................... passim
Rules
Fed.
R. App. P. 29(a)(2).................................................................... 1
Other
Brief
for United States as Amicus Curiae, Jackson v. Genesee Cnty. Rd. Comm’n,
2021 WL 2155045, -- F.3d -- (6th Cir. May 27, 2021) (No. 20-1334), 2020 WL
4228591............................... 10
EEOC
Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (Aug.
25, 2016), 2016 WL 4688886 8, 9, 10, 22
The Equal Employment
Opportunity Commission (“EEOC” or “Commission”) is the primary agency charged
by Congress with administering and enforcing federal laws prohibiting workplace
discrimination, including Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e et seq. This appeal concerns the scope of protected activity
under Title VII’s antiretaliation provision, an issue of central importance to
the EEOC. The district court held that actions plaintiff took in connection
with bringing an employee’s complaint of sexual harassment to the attention of
defendant’s management did not qualify as protected opposition activity under
Title VII, and that defendant therefore could retaliate against her because of
those actions. The sole basis for the court’s holding was the so-called
“manager rule” — a doctrine applied in certain cases arising under the Fair
Labor Standards Act (“FLSA”) that has no place in the Title VII context. An
affirmance of the district court’s ruling would seriously undermine Title VII’s
antiretaliation protections. The EEOC therefore offers its views to the Court.
See Fed. R. App. P. 29(a)(2).
Title VII bars an employer from retaliating against “any”
employee because she has, inter alia, “opposed any practice” made
unlawful by Title VII. 42
U.S.C. § 2000e-3(a). The district court held that plaintiff’s actions
bringing an employee’s sexual-harassment complaint to the attention of
management did not qualify as protected opposition activity — and that defendant
therefore could retaliate against her for taking those actions. The court
based its ruling solely on the “manager rule,” which applies in some FLSA cases
and provides that actions human resources officials take in the course of
performing their job duties never qualify as protected activity. Did the
district court err in concluding that the “manager rule” applies to Title VII
opposition-clause cases?
Pertinent statutory
provisions are reproduced in the addendum to this brief.
A. Factual Background
Plaintiff Lisa Nelson
began working for defendant Health Services, Inc. (“HSI”), in May 1998. R.71-2
at 12, 185.
She performed well, took on additional responsibilities, and received numerous
pay increases. R.71-2 at 186-211, 217-303. At the time of the events in
question, Nelson worked for HSI in several roles, including Executive
Administrative Assistant to the Chief Executive Officer (“CEO”) and interim
Human Resources Director. R.71-2 at 23; R.71-3 at 26.
In June 2015, HSI’s Chief
Operating Officer (“COO”), Bianca Granger, complained to Nelson in the latter’s
capacity as interim Human Resources Director. R.71-2 at 31; R.73-1 at 7-8
(¶ 26); R.71-4 at 16. Granger told Nelson that a member of HSI’s board of
directors, Gilbert Darrington, made repeated unwanted sexual advances to her
during a business trip the two had taken. R.71-2 at 31; R.73-1 at 7-8
(¶ 26); R.73-3 at 3 (¶ 4). At the time of Granger’s complaint, both
Granger and Darrington were under consideration to become HSI’s new CEO. R.73-1
at 7 (¶ 26).
Nelson reported Granger’s
sexual-harassment complaint to the vice chair of HSI’s board of directors (who
told her not to bring it to the CEO), two other board members (one of whom gave
her permission to bring it to the CEO), and HSI’s attorney, who told her she
was required to report it. R.71-2 at 32-33; R.73-1 at 8 (¶¶ 27-28). She
then brought the complaint to the CEO’s attention and participated in the
subsequent investigation. R.73-1 at 9 (¶¶ 29-30). During this period,
Darrington learned that Nelson reported the complaint to the board of
directors. R.73-1 at 10 (¶ 31); R.73-2 at 3 (¶ 3); R.73-3 at 4 (¶¶ 9-11).
Despite Granger’s complaint, HSI hired Darrington as its new CEO effective
October 19, 2015. R.71-1 at 3 (¶ 4); R.73-1 at 9-10 (¶¶ 31, 33).
One month after
Darrington became CEO, he reassigned Nelson to be Executive Assistant to
Granger (the COO) instead of to himself (the CEO), and he cut her annual pay by
$20,000 (roughly 25% of her salary). R.73-1 at 10 (¶ 34); R.71-2 at 212.
Darrington also eliminated the Human Resources Director position Nelson wanted
to assume on a permanent basis, replacing it with a subordinate, lower-paying
Human Resources Manager position. R.73-1 at 10-11 (¶ 34); R.71-2 at 212;
R.71-1 at 4 (¶¶ 7-8). Darrington claimed he took these actions as part of
a broader corporate reorganization. R.71-1 at 3-4 (¶¶ 5-8).
B. Procedural
Background
Nelson
filed suit under Title VII alleging, inter alia, that Darrington
transferred her and reduced her pay in November 2015 in retaliation for her
actions reporting Granger’s sexual-harassment complaint against him. R.71-2 at
306-07. The district court granted HSI’s motion for summary judgment on this
claim. R.81 (slip op.) at 10-13. The sole basis for the court’s ruling was
its conclusion that Nelson did not engage in protected activity under the
“manager rule” set out in Brush v. Sears Holding Corp., 466 F. App’x 781
(11th Cir. 2012). R.81 (slip op.) at 10-13.
The court stated that,
under the manager rule, “a management employee that, in the course of her
normal job performance, disagrees with or opposes the actions of an employer,
does not engage in ‘protected activity.’” Id. at 10 (quoting Brush,
466 F. App’x at 787). To trigger the protections of the antiretaliation
provision, according to the district court, such an employee must instead show
that she was “lodging a personal complaint” or otherwise
“stepping outside [her] normal role.” Id. (citation omitted).
Applying this rule, the court found that Nelson’s reports of Granger’s
complaint “w[ere] performed pursuant to her job duties as acting Human
Resources Director” and were “within the terms of the company’s policies.” Id.
at 12. Because reporting the complaint “f[ell] within Nelson’s ‘normal job
performance,’” the court held that it did not qualify as “protected activity.”
Id. at 13 (quoting Brush, 466 F. App’x at 787). Nelson had
argued that the manager rule does not apply to Title VII cases, but the court did
not address that argument, instead assuming that the rule as set out in Brush
governs.[4]
The district court erred
in rejecting Nelson’s claim that HSI retaliated against her in 2015 for actions
she took in connection with informing management of another employee’s
sexual-harassment complaint. The opposition clause of Title VII’s
antiretaliation provision prohibits an employer from “discriminat[ing] against
any of his employees . . . because [the employee] has
opposed any practice made an unlawful employment practice by [Title VII].” 42
U.S.C. § 2000e-3(a). An employee can generally be said to have “opposed”
an unlawful employment practice if she informs her employer that she believes
unlawful discrimination occurred in the workplace. Her opposition activity is
protected by the statute if the manner of her opposition is reasonable and if she
has a good-faith, reasonable belief that unlawful conduct occurred.
The district court incorrectly
grafted an additional requirement onto the opposition clause applicable only to
management and human resources officials. According to the district court, Title
VII protects opposition activity by such officials only if they step outside their
professional role when undertaking the activity. This requirement, known as
the “manager rule,” is derived from retaliation cases arising under the FLSA.
The district court erred
in importing the manager rule into the Title VII opposition-clause context. Regardless
of the manager rule’s validity in FLSA cases, it runs afoul of Title VII’s text
and undermines that statute’s important purposes. Because of this conflict, every
other court of appeals to have decided the issue in a published decision has
held that the manager rule has no place in Title VII opposition-clause cases. Although
this Court applied the manager rule in an unpublished Title VII decision, Brush,
466 F. App’x at 787, this Court should not follow that decision. Brush
did not analyze Title VII’s text and purposes, and did not acknowledge that the
manager rule arose in the FLSA context. Because the district court
rejected Nelson’s retaliation claim concerning her 2015 transfer and reduction
in pay solely on manager-rule grounds, this Court should reverse and remand for
further proceedings on that claim.
This Court should not import the manager rule from the FLSA
context to deprive management and human resources officials of the full scope
of protection offered by Title VII’s opposition clause.
A. The opposition clause of Title VII’s
antiretaliation provision offers employees broad protection.
Under Title VII, an
employer may not retaliate against an employee because she “has opposed any
practice made an unlawful employment practice” under Title VII. 42 U.S.C.
§ 2000e-3(a). This is referred to as the antiretaliation provision’s
“opposition clause.” EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171,
1174 (11th Cir. 2000). The definition of “opposition” in this context is
“expansive.” EEOC v. New Breed Logistics, 783 F.3d 1057, 1067 (6th Cir.
2015). As the Supreme Court explained in Crawford v. Metropolitan
Government of Nashville & Davidson County, 555 U.S. 271 (2009), this
standard is met virtually any time “an employee communicates to her employer a
belief that the employer has engaged in . . . a form of employment
discrimination.” Id. at 276 (alteration in original) (citation
omitted).
In particular, Crawford
held that an employee’s “ostensibly disapproving account of sexually
obnoxious behavior toward her by a fellow employee” was covered by the
opposition clause, even though the employee provided the account not on her own
initiative, but in response to questions from her employer. Id. The
Court explained that, “in ordinary
discourse, . . . we would naturally use the word [‘oppose’]
to speak of someone who has taken no action at all to advance a position beyond
disclosing it.” Id. at 277; see also id. (noting that
“oppose” is undefined in the statute and therefore carries its ordinary
meaning, which implies less active effort than the term “resist”). Thus,
“[p]rotected ‘opposition activity’ broadly includes the many ways in which an
individual may communicate explicitly or implicitly opposition to perceived
employment discrimination.” EEOC Enforcement Guidance on Retaliation
and Related Issues, No. 915.004 (Aug. 25, 2016), 2016 WL 4688886, at *7 (“Retaliation Guidance”).
In district court, HSI did not dispute that Nelson engaged in “opposition”
activity under these standards when she pursued Granger’s sexual-harassment
complaint with management in 2015, R.73-1 at 7-9 (¶¶ 26-30), and the
district court likewise did not address that issue. Thus, it is not presented in
this appeal.
This Court, like most
other courts of appeals, has recognized two additional limitations on conduct
constituting protected opposition under Title VII. Neither is at issue in this
case. First, as this Court recently reaffirmed in Gogel v. Kia Motors
Manufacturing of Georgia, Inc., 967 F.3d 1121 (11th Cir. 2020) (en banc), “[O]pposition
to allegedly unlawful employment practices must be done in a reasonable
manner.” Id. at 1141; accord Retaliation Guidance, 2016 WL
4688886, at *8-9, *11. Gogel is particularly instructive because the
plaintiff in Gogel, like the plaintiff here, was a human resources
official. In Gogel, the Court held that the plaintiff would be acting
in an unreasonable manner if she actively recruited another employee to file a
Title VII suit against the company, reasoning that such conduct would “so
interfere[] with the performance of her job duties that it [would] render[] her
ineffective in the position for which she was employed.” 967 F.3d at 1139
(citations and alterations omitted). Here, by contrast, Nelson learned of
Granger’s sexual-harassment complaint in her capacity as interim Human
Resources Director. Acting in accordance with HSI’s policies and pursuant to
instructions from HSI’s attorney, she conveyed the complaint up the chain of
command and participated in the company’s subsequent investigation. R.73-1 at
7-9 (¶¶ 26-30). These actions — unlike those in Gogel — did not
interfere with Nelson’s job duties. Thus, HSI did not argue in district court
that Nelson acted in an unreasonable manner, and the district court did not
address that question. Nelson’s satisfaction of the reasonable-manner
requirement is therefore not in dispute in this case.
Second, protected
opposition conduct must be premised on “a good faith, reasonable belief that
the employer was engaged in unlawful employment practices.” Dixon v.
Hallmark Cos., 627 F.3d 849, 857 (11th Cir. 2010); accord Retaliation
Guidance, 2016 WL 4688886, at *9-10. HSI did not argue in district court that
Nelson lacked such a good-faith, reasonable belief when she took action on
Granger’s complaint, and the district court did not address the issue. Thus,
this limitation is likewise not presented on appeal.
B. Regardless of its validity in the FLSA context, the
manager rule has no place in cases involving Title VII’s opposition clause.
The district court
grafted an additional requirement onto the opposition clause applicable only to
management and human resources employees — the requirement that their
opposition to employment discrimination also satisfy the stringent conditions of
the “manager rule” applied in some FLSA cases. Under the district court’s
approach, the manager rule can render a human resources official’s conduct
unprotected even where, as here, the employer does not dispute that
(1) the conduct constitutes “opposition” within the meaning of the
statute; and (2) the official engaged in that conduct in a reasonable
manner and with a good-faith, reasonable belief that she was opposing a Title
VII violation.
Contrary to the district
court’s conclusion, the manager rule has no place in Title VII opposition-clause
cases because it is fundamentally inconsistent with Title VII’s text and
purposes. This Court should therefore join every other circuit to have decided
the issue in a published opinion and hold that the manager rule is inapplicable
in the Title VII opposition-clause context.
Accord Retaliation Guidance, 2016 WL 4688886, at *11-12 & n.67
(“Protected activity includes [equal employment opportunity] complaints by
managers, human resources staff, and [equal employment opportunity] advisors —
even when those complaints happen to grow out of the individual’s job duties —
provided the complaint meets all the other relevant requirements for protected
activity.”). Because the district court’s application of the manager rule was
its sole reason for rejecting Nelson’s retaliation claim concerning her 2015
transfer and reduction in pay, R.81 (slip op.) at 10-13, this Court should
reverse and remand for further proceedings on that claim.
1. The manager rule appears nowhere in the text of Title
VII.
A judicially created doctrine,
the manager rule originated in the context of the FLSA, 29 U.S.C. §§ 203 et
seq. See McKenzie v. Renberg’s Inc.,
94 F.3d 1478, 1486-87 (10th Cir. 1996). Under this rule, a managerial or
human resources employee is protected from retaliation for certain FLSA-related
activity only if she “step[s] outside . . . her role of representing
the company,” DeMasters v. Carilion Clinic, 796 F.3d 409, 421 (4th Cir.
2015) (citation omitted), or “crosse[s] the line from being an employee merely
performing her job . . . to an employee lodging a personal complaint,” McKenzie,
94 F.3d at 1486. But see Rosenfield v. GlobalTranz Enters., Inc., 811
F.3d 282, 287-88 (9th Cir. 2015) (declining to fully embrace the manager rule
in the FLSA context).
Such a rule finds no support in the text of Title VII. The
statute’s antiretaliation provision is, in the words of this Court,
“straightforward and expansively written.” Merritt v. Dillard Paper Co.,
120 F.3d 1181, 1186 (11th Cir. 1997). As relevant here, the provision protects
an employee from retaliation if she “has opposed any practice made an unlawful
employment practice” under Title VII. 42 U.S.C. § 2000e-3(a). The
Supreme Court has already confirmed that the “[t]he term ‘oppose[]’ . . . carries
its ordinary meaning,” i.e., “[t]o resist or
antagonize . . . ; to contend against; to confront; resist;
withstand.” Crawford, 555 U.S. at 276 (quoting Webster’s New
International Dictionary 1710 (2d ed. 1957)). “‘When an employee
communicates to her employer a belief that the employer has engaged
in . . . a form of employment discrimination, that
communication’ virtually always ‘constitutes the employee’s opposition
to the activity.’” Id. (citation omitted). There is no additional requirement
in Title VII’s text that the employee “step[] outside [her] normal role,” R.81 (slip op.) at 10 (citation omitted),
before her conduct may qualify as opposition under the statute.
The statute also lacks any textual basis for treating
managerial and human resources officials differently from other employees, but the
manager rule singles out that category of employees to deprive them of a
measure of statutory protection against retaliation. See Brush,
466 F. App’x at 787. Title VII’s antiretaliation provision prohibits
“discriminat[ion] against any . . . employees” because of their
opposition to an unlawful employment practice. 42 U.S.C. § 2000e-3(a)
(emphasis added). The word “any,” unaccompanied by limiting language, “is not
ambiguous; it has a well-established meaning . . . . ‘[A]ny’ means all.” Merritt,
120 F.3d at 1186; see also Jackson v. Genesee Cnty. Rd. Comm’n, No.
20-1334, 2021 WL 2155045, -- F.3d --, at *6 (6th Cir. May 27, 2021)
(holding that the use of “any” in 42 U.S.C. § 2000e-3(a) “suggests that
all employees are subject to the same standard”). As to the provision’s use of
the term “employees,” Title VII defines an “employee” as “an individual
employed by an employer.” 42 U.S.C. § 2000e(f). The definition includes
exemptions for specific individuals, including certain elected officials and
members of their personal staffs, but it contains no carve-out for management
or human resources employees. Id. Thus, Title VII bars retaliation
against “all” non-exempt “individuals employed by an employer,” which perforce
includes managers and human resources personnel. Id. §§ 2000e-3(a),
2000e(f); Merritt, 120 F.3d at 1186; see Littlejohn v. N.Y.C.,
795 F.3d 297, 318 (2d Cir. 2015) (“The plain language of [the] opposition
clause . . . does not distinguish among entry-level employees, managers, and
any other type of employee.”); DeMasters, 796 F.3d at 422 (similar).
In applying the manager rule, the district court grafted
onto these clear statutory provisions the additional requirement that a manager
or human resources official “cross[] the line from being an employee performing
her job” or “step[] outside” her usual role. R.81
(slip op.) at 10. The court thus impermissibly “add[ed] words to the
law to produce what [it] thought to be a desirable result.” EEOC v.
Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 774 (2015); Mamani
v. Berzain, 825 F.3d 1304, 1310 (11th Cir. 2016) (quoting Abercrombie
and referring to “the no-no of judicial revision of statutory language”); cf.
Crawford, 555 U.S. at 277 (rejecting the idea that protected opposition is
limited to “active” or “consistent” conduct because such a requirement has no
foundation in the text of the opposition clause).
Regardless of the rule’s validity in FLSA cases, differences
in scope and breadth between the antiretaliation provisions of the FLSA and
Title VII “counsel against importing the ‘manager rule’ into Title VII.” DeMasters,
796 F.3d at 422 (citation omitted). The FLSA’s more limited definition of
protected activity includes only (1) “fil[ing] any complaint”;
(2) “institut[ing] or caus[ing] to be instituted any proceeding [related
to the FLSA]”; and (3) “testif[ying] . . . in any such proceeding.” 29 U.S.C. § 215(a)(3). “The FLSA’s
antiretaliation provision does not contain an equivalent ‘opposition’ clause.”
Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 49 n.5 (1st
Cir. 2010); see also Jackson, 2021 WL 2155045, at *7 (same).
Rather, “the conduct protected by the FLSA is far more constricted than the
broad range of conduct protected by Title VII’s anti-retaliation provision.” DeMasters,
796 F.3d at 422. Therefore, even if the manager rule should apply to some
retaliation claims under the FLSA, textual differences between the two statutes
militate against extending the rule to Title VII’s broadly written opposition
clause covering “oppos[ition to] any . . . unlawful employment practice,” 42
U.S.C. § 2000e-3(a).
2. The manager rule undercuts Title VII’s objectives.
The manager rule also subverts
a number of important goals animating Title VII. First, the Supreme Court has
explained that to reduce workplace discrimination, employees must have
“unfettered access to statutory remedial mechanisms.” Robinson
v. Shell Oil Co., 519 U.S. 337, 346 (1997). To that end, “broad
protection from retaliation” is necessary to ensure “the cooperation of
employees who are willing to file complaints and act as witnesses.” Burlington
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006). More
generally, Title VII is designed to “encourage employees to call to
their employers’ attention discriminatory practices of which the employer may
be unaware or which might result in protracted litigation to determine their
legality if they are not voluntarily changed”; “the
frank and nondisruptive exchange of ideas between employers and employees” is
“one of the chief means” of “eliminat[ing] . . . employment
discrimination by informal means.” Berg v. La Crosse Cooler Co., 612
F.2d 1041, 1045 (7th Cir. 1980) (explaining that Title VII’s antiretaliation
provision “plays a central role” in effectuating these goals).
Indeed, the Supreme Court
has recognized that, in certain respects, Title VII “provide[s] broader
protection for victims of retaliation than for those whom Title VII primarily
seeks to protect, namely, victims of race-based, ethnic-based, religion-based,
or gender-based discrimination” because “effective enforcement could . . . only
be expected if employees felt free to approach officials with their
grievances.” Burlington N., 548 U.S. at 66-67 (citation omitted); cf.
Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 175 (2011) (“[W]e
adopted a broad standard in Burlington because Title VII’s
antiretaliation provision is worded broadly.”). The manager rule, conversely,
provides a disincentive for managers and human resources officials to voice
their concerns about an employer’s unlawful conduct. This result is
particularly problematic because the training, expertise, and job duties of
these employees make them especially well situated to identify — and remediate
— such conduct. See DeMasters, 796 F.3d at 424 n.8 (noting “the
chilling effects of the ‘manager rule’ on the reporting of workplace
discrimination”); Johnson v. Univ. of Cincinnati, 215 F.3d 561, 580 (6th
Cir. 2000) (rejecting the argument that Title VII countenances an employer’s
“retaliat[ion] against the person best able to oppose the employer’s
discriminatory practices . . . without fear of reprisal”).
Second, and relatedly,
the manager rule conflicts with the principle that Congress intended Title VII
to create incentives for employers to adopt policies and procedures encouraging
the prompt reporting, investigation, and remediation of discrimination. See,
e.g., Burlington Indus., Inc. v. Ellerth,
524 U.S. 742, 764 (1998) (“Title VII is designed to encourage the [employer’s]
creation of antiharassment policies and effective grievance mechanisms.”); Kolstad
v. Am. Dental Ass’n, 527 U.S. 526, 546 (1999) (recognizing “Title VII’s
objective of motivat[ing] employers to detect and deter Title VII violations”
(alteration in original) (citation omitted)). Managerial and human resources
employees play a critical role in “facilitat[ing] the use of these
procedures.” DeMasters, 796 F.3d at 423. But “[a]pplying the ‘manager
rule’ in the Title VII context would discourage these very employees from
voicing concerns about workplace discrimination and put in motion a downward
spiral of Title VII enforcement: If they remain silent, victims of
discrimination are less likely to use their employers’ internal investigation
mechanisms in the first place, . . . allowing discrimination in
the workplace to go undeterred and unremedied.” Id.
3. Numerous other courts of appeals have rejected the
invitation to apply the manager rule in Title VII cases, and none has affirmatively
endorsed the rule in a published decision.
Multiple decisions from
other circuits have squarely rejected the manager rule and its underlying
premises in the Title VII context. The Second Circuit explicitly “decline[d]
to adopt the manager rule” in an opposition-clause case, reasoning that its
“focus on an employee’s job duties, rather than the oppositional nature of the
employee’s complaints or criticisms, is inapposite in the context of Title VII
retaliation claims.” Littlejohn, 795 F.3d at 317 n.16. Similarly, the
Fourth Circuit declared, “[T]he ‘manager rule’ has no place in Title VII
jurisprudence.” DeMasters, 796 F.3d at 413; see also id. at
424. The Sixth Circuit recently concluded that “both the text of Title VII and
our precedent reject [an] additional restriction that the opposition clause
does not extend to an employee’s regular job duties,” and the court explained
that “[t]here are good reasons . . . not to extend the FLSA manager rule to
Title VII claims.” Jackson, 2021 WL 2155045, at *6-7; see also Johnson, 215 F.3d at 580 (rejecting the argument that a high-level affirmative action
official was excluded from Title VII’s antiretaliation protection based on his
job duties; stating that such a holding would “run[] counter to the broad
approach used when considering a claim for retaliation under th[e opposition]
clause, as well as the spirit and purpose behind Title VII as a broad remedial
measure”); Smith v. Sec’y of the Navy, 659 F.2d 1113, 1121-22 (D.C. Cir.
1981) (concluding that the plain language of Title VII’s antiretaliation
provision prohibited reprisals against an employee for his work as an [equal
employment opportunity] counselor, and concluding that the employee’s “[equal
employment opportunity] work . . . plainly falls within the protective ambit of
the statutory language”).
Other courts of appeals,
though not deciding the issue definitively, have questioned the applicability
of the manager rule to Title VII claims. See Weeks
v. Kansas, 503 F. App’x 640, 643 (10th Cir. 2012) (Gorsuch, J.)
(noting, in a case where the plaintiff’s briefing assumed that the manager rule
applied in the Title VII context, that “one might perhaps argue that [precedent
applying the manager rule in an FLSA case] itself has been superseded” by Crawford,
but finding the issue waived); Collazo, 617 F.3d at 49 n.5 (1st Cir.)
(analyzing Title VII claim under the manager rule for the sake of argument, but
noting, in the course of finding that an employee had engaged in protected
conduct, that “the language of the antiretaliation provision of the FLSA is
different from that of Title VII” and lacks an opposition clause); see also
Pippin v. Boulevard Motel Corp., 835 F.3d 180, 183-84 (1st Cir. 2016)
(rejecting a “job duties exception” to a state-law antiretaliation provision that
defined protected activity to mean opposition to unlawful activity); cf.
EEOC v. HBE Corp., 135 F.3d 543, 554 (8th Cir. 1998) (reciting McKenzie’s
requirement of “‘step[ping] outside’ [the] employment role” in dictum in a pre-Crawford
Title VII decision but affirming judgment against the employer).
Importantly, no circuit has squarely held in a published decision that the
manager rule should apply in the Title VII context.
4. Application of the manager rule to Title VII cases
is unsettled in this Circuit, and Brush, an unpublished decision of this
Court, is unpersuasive.
This Court has not
definitively ruled on whether the manager rule applies to Title VII retaliation
cases in a published opinion. This Court’s recent en banc decision in Gogel
concerned a Title VII retaliation claim brought by a human resources
official, but it did not discuss the manager rule. Gogel, 967 F.3d at
1126, 1127, 1133. As noted above, Gogel held that the opposition
activity at issue there — recruiting another employee to file a Title VII suit
against the employer — was unprotected because the manner of the opposition was
unreasonable. Id. at 1139. In dictum, the Court contrasted that
conduct with activity that was protected under the statute: the human
resources official there “enjoyed the right to report to management any
concerns she had” about her employer’s treatment of other employees, the very
type of conduct Nelson engaged in here. Id. at 1144. Gogel described
the plaintiff’s “internal advocacy before [the company’s] management on behalf
of other employees” as “clearly protected conduct,” id., but it did not expressly
reject (or endorse) the manager rule.
In the absence of any
binding precedent, the district court here relied on this Court’s conclusion in
Brush that the manager rule applies to Title VII retaliation cases. R.81
(slip op.) at 10-11, 13 (citing Brush, 466 F. App’x at 787). But Brush,
an unpublished decision, is nonbinding and citable only for its persuasive
value. 11th Cir. R. 36-2. Multiple reasons support rejecting Brush as
unpersuasive.
To begin, Brush
did not analyze Title VII’s text or purposes when it applied the manager rule,
and it did not assess whether the rule conflicts with them. Brush also failed to acknowledge that the
manager rule arose in the FLSA context, and it did not consider whether textual
differences between the FLSA and Title VII compel a different result in Title
VII cases. Brush, 466 F. App’x at 787 (relying on FLSA cases without
noting that they arose under the FLSA); cf. DeMasters, 796 F.3d
at 422 (“[W]e . . . must take care to respect any differences in language
and purpose between Title VII and the FLSA before adopting a rule from one to
the other.”).
In addition, Brush did
not address the precedent cited above from other courts of appeals affording
protection under Title VII’s antiretaliation provision to managers and human
resource officials for actions taken while performing their jobs. See supra pp.
17-19. Indeed, because Littlejohn, DeMasters, and Jackson all post-dated Brush, this Court could not
look to the analyses in those opinions leading the Second, Fourth, and Sixth
Circuits to reject the manager rule in Title VII retaliation cases. See DeMasters,
796 F.3d at 422; Littlejohn, 795 F.3d at 317-18 & n.16; Jackson, 2021
WL 2155045 at *6-7.
Finally, Brush did not engage with Crawford’s
conclusion that the definition of the statutory term “opposition” is
expansive. Crawford, 555 U.S. at 276-77 (“When an employee communicates
to her employer a belief that the employer has engaged in . . . a
form of employment discrimination, that communication virtually always
constitutes the employee’s opposition to the activity.” (internal
quotation marks omitted)). Brush instead concluded that Crawford
“pertained only to whether the reporting of a harassment claim was covered by
Title VII where the reporting was solicited rather than volunteered.” Brush,
466 F. App’x at 787. Crawford certainly held that both voluntary and
solicited reporting could constitute opposition (and, indeed, stated that a
contrary rule would be “freakish,” id. at 278), but its discussion was
clearly not confined to that narrow holding. Id. at 276-77.
5. Existing protections are sufficient to protect
employers from unmeritorious retaliation claims under Title VII.
In the FLSA context, some
courts have raised the policy-based argument that, without the manager rule, managers
and other human resources employees might be able to establish a prima facie
case of retaliation any time they experience a materially adverse action,
because nearly all of their job duties could potentially constitute protected
activity. See, e.g., Hagan v. Echostar Satellite, L.L.C.,
529 F.3d 617, 628 (5th Cir. 2008); Littlejohn, 795 F.3d at 318 (noting
that defendants raised the argument in the Title VII context). According to its
proponents, the manager rule is therefore necessary to avoid making affected
employees excessively “difficult to discharge without fear of a lawsuit.” Hagan,
529 F.3d at 628. This rationale does not justify applying the manager rule to
Title VII.
First, as noted above, policy objections cannot overcome
the statutory text, Abercrombie, 575 U.S. at 774, and there is no
textual basis for applying the manager rule in Title VII cases. Second, this
policy concern is misplaced because it ignores the limitations that already
exist on a Title VII retaliation claim under the opposition clause. As
explained above, for activity to be protected under Title VII’s opposition
clause, the employee must engage in “opposition” within the meaning of the
statute; the manner of this opposition must be reasonable; and she must have a
good-faith, reasonable belief that unlawful conduct occurred. See supra pp.
8-9. The reasonable-manner requirement, in particular, reflects a balancing of
an employer’s need for an orderly workplace and an employee’s right to be free from
retaliation. See Gogel, 967 F.3d at 1141; see generally
Retaliation Guidance, 2016 WL 4688886, at *8 (“Courts and the Commission balance
the right to oppose employment discrimination against the employer’s need to
have a stable and productive work environment.”). A human resources official’s
manner of opposition would be unreasonable, for example, if her “protests
render the employee ineffective in the job.” Id. at *9; see Gogel,
967 F.3d at 1139, 1141, 1145.
In addition, protected activity constitutes only one
element of a prima facie case of retaliation. Even if an employee is able to
establish that element, she must still show that she suffered a materially
adverse action and that the action was causally connected to her protected
activity. Gogel, 967 F.3d at 1134-35. And even after an employee establishes
a prima facie case, as long as her employer articulates a legitimate,
non-retaliatory reason for the challenged action, she retains the ultimate
burden of establishing that “her protected activity was a but-for cause of the
alleged adverse action by the employer.” Id. at 1135 (quoting Univ.
of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013)).
In sum, the FLSA’s manager rule has no place in Title VII.
Even without this limitation, the numerous additional requirements a plaintiff
must fulfill to prevail on her retaliation claim obviate any concerns that the
atextual manager rule is needed to avoid a “litigation minefield.” Hagan,
529 F.3d at 628.
For the foregoing
reasons, the judgment of the district court should be reversed.
Respectfully submitted,
GWENDOLYN
YOUNG REAMS
Acting General Counsel
JENNIfer
s. goldstein
Associate General Counsel
SYDNEY
A.R. FOSTER
Assistant General Counsel
/s/
Jeremy D. Horowitz
JEREMY
D. HOROWITZ
Attorney, Appellate Litigation Services
Office of General Counsel
Equal Employment Opportunity Commission
131 M St. NE, Fifth Floor
Washington, DC 20507
(202) 921-2549
jeremy.horowitz@eeoc.gov
June 8, 2021
