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Employment Law Worldview

Management Employees Critical of Company Investigations Are Not Protected by Title VII

Posted in Employment Policies

Late in January 2013, the United States Supreme Court refused to hear a case, Brush v. Sears Holding Corporation, involving an employee who alleged that she was terminated in retaliation for criticizing her employer’s treatment of another employee’s sexual harassment claim.  Consequently, the Eleventh Circuit’s decision [pdf] stands.  The Court of Appeals found that complaining about the inadequacy of an investigation rather than discriminatory practices does not warrant protection under Title VII.

Ms. Brush, an employee in Human Resources, was tasked with conducting an internal sexual harassment investigation.  After interviewing the alleged victim, Ms. Brush and her colleague determined that the victim was not forthcoming and decided that Ms. Brush would re-interview the victim.  During the re-interview, the victim asserted that the accused manager raped her, but also reported that she did not want to notify the police or her husband.  Sears subsequently terminated the alleged harasser.  However, Ms. Brush continued to assert that Sears should notify the police.  Thereafter, Sears terminated Ms. Brush’s employment.  Ms. Brush filed an administrative charge with the Equal Employment Opportunity Commission (“EEOC”) which found reasonable cause to support her retaliation claim.

However, the court ultimately dismissed Ms. Brush’s retaliation claim finding that she did not engage in protected conduct.  To maintain a claim for retaliation, an employee must establish that the employee

(a) engaged in protected activity,

(b) suffered a materially adverse employment action, and

(c) there is a causal link between the protected activity and the materially adverse employment action (e.g., demotion, termination).

Under Title VII, employees can engage in protected activity under the participation or opposition clause.  The participation clause generally requires participation in a pending claim before an administrative agency (e.g., EEOC) or a court.  Because there was no such pending claim when Sears terminated Ms. Brush’s employment, the participation clause was not applicable.

Under the opposition clause, an employee must oppose a practice that is made unlawful by Title VII.  Here, Ms. Brush failed to establish that she opposed such a practice.  Although her opposition related to another employee’s sexual harassment claims, she was neither the victim nor the accused.  As part of her job, Ms. Brush was assigned to conduct an internal investigation.  Thus, the court found that Ms. Brush was a manager and 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.’”  Thus, Ms. Brush’s disagreement with internal procedures is not protected activity opposing discriminatory practices.

This case is a significant win for employers especially at a time when retaliation claims continue explode.  In fact, retaliation charges are the most frequent charge filed with the EEOC.  However, this case does not establish that employers can terminate managers or human resources professionals at any time with no fear of retaliation claims.  The case is fact specific and employers are advised to proceed cautiously and seek legal advice when responding to an employee’s complaints.