Thursday, January 28, 2016

EEOC Rejects "Manager Rule" in New (Proposed) Retaliation Guidance

I'm working my way through the EEOC's proposed guidance on retaliation claims. On pages 13-16, the EEOC specifically rejects the "manager rule" and notes that DOL rejects it too. The guidance cites Joint Amicus Brief for the Secretary of Labor and the Equal Employment Opportunity Commission, Rosenfield v. GlobalTranz Enterprises, Inc., __ F.3d __, 2015 WL 8599403 (9th Cir. Dec. 14, 2015) (No. 13-15292)(available here).

What is the "manager rule?" I've covered this before in the context of Title VII:
Not official use.
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.
What does the EEOC have to say about it? Well, from the proposed guidance:
[I]n determining if protected opposition occurred, the focus should not be on the employee’s “job duties” but rather on the “oppositional nature of the employee’s complaints or criticisms, [and any other rule would be] inapposite in the context of Title VII retaliation claims.” 
Rejection of the “manager rule” under Title VII does not mean that every human resources employee, or every managerial employee with a duty to report discrimination, will have a viable claim of retaliation. A managerial employee with a duty to report or investigate discrimination still must satisfy the same requirements as any other employee alleging retaliation under the opposition clause described below -- meeting the definition of “opposition,” acting with a reasonable and good faith belief that the opposed practice is unlawful (or would be if repeated), and using a manner of opposition that is reasonable.
I'm not sure that's a model of clarity, but it's a start.