Wednesday, August 12, 2015

2d Circuit Weighs in on "the Manager Rule" and Pleading Standards

Earlier this month, the Second Circuit issued its opinion in Littlejohn v. City of New York addressing "the manager rule" under Title VII retaliation claims.

Sometimes, in retaliation cases, the employee claiming to have opposed discrimination also has a job responsibility that involves policing discrimination in the workplace. In litigation, employers will often argue that the employee has not really engaged in "protected activity" because the employee was just doing his or her job... not really opposing discrimination as contemplated in Title VII. Let's cut straight to the holding:
To the extent an employee is required as part of her job duties to report or investigate other employees' complaints of discrimination, such reporting or investigating by itself is not a protected activity under § 704(a)'s opposition clause, because merely to convey others' complaints of discrimination is not to oppose practices made unlawful by Title VII. But if an employee—even one whose job responsibilities involve *5656investigating complaints of discrimination—actively "support[s]" other employees in asserting their Title VII rights or personally "complain[s]" or is "critical" about the "discriminatory employment practices" of her employer, that employee has engaged in a protected activity under § 704(a)'s opposition clause.
The Court tried to contrast "just doing her job" with personal opposition to discrimination. This sounds like a good rule, but I suspect it will often be easier recited than applied. We'll see.

If you're into pleading standards for discrimination claims in a post-Iqbal-Twombly world, the Court also addressed that. Frankly, I think they dragged the analysis out a little longer than necessary... but ultimately reached what I think is the inevitable conclusion on this issue: The plaintiff must allege facts that establish a prima facie case under the McDonnell Douglas test (assuming it's a circumstantial case - obviously, allegations of direct evidence of discrimination would also suffice).

The tricky part is the discrimination prong of that initial analysis. The Court held that the plaintiff must allege facts that "give plausible support to a minimal inference of discriminatory motivation."