In DeMasters v. Carilion Clinic, the Fourth Circuit Court of Appeals clarifies what constitutes protected oppositional activities under Title VII and refuses to extend the FLSA’s “manager rule” to Title VII retaliation claims. This case serves as an important reminder to employers that managers relaying information about harassing conduct are protected by Title VII and cannot be disciplined for disagreeing with how the company is handling a particular complaint.
J. Neil DeMasters (“DeMasters”) was employed by Carilion Clinic as an employee assistance program (“EAP”) consultant. His job duties included counseling employees experiencing difficulties in the work place. During the course of DeMasters employment as an EAP consultant, an unnamed employee (“John Doe”) was referred to DeMasters for counseling. John Doe revealed that he was repeatedly subjected to lewd behavior by his department manager (“Manager”). John Doe claimed that Manager masturbated in front of him twice on hospital grounds and sexually propositioned him multiple times. DeMasters opined that John Doe was being subjected to unlawful sexual harassment and reported the incident to the human resources department. DeMasters also suggested that John Doe sign a release form that authorized him to communicate with Carilion Clinic directly on his behalf. Carilion Clinic investigated the matter, determined that Manager had likely engaged in unlawful conduct and promptly fired him.
Shortly after Manager was fired, John Doe contacted DeMasters again and informed him that he was being actively harassed by co-workers who were loyal to Manager and believed that Manager should not have been fired. DeMasters reported the problem to the human resources department. The human resources department informed DeMasters that they were aware of the issue and were looking into it. DeMasters offered to coach the human resources department on how to handle the matter but they declined his help. The human resources department’s follow-up investigation exacerbated the situation and the harassing behavior directed at John Doe allegedly intensified. At this point, DeMasters openly voiced his opinion that Carilion Clinic had mishandled John Doe’s complaints of co-worker harassment and again offered to help resolve the situation.
John Doe sued Carilion Clinic under Title VII and the lawsuit was ultimately settled. After the dust cleared, Carilion Clinic management questioned DeMasters about his involvement with John Doe and the filing of his complaint with the human resources department. Specifically, the Carilion Clinic managers wanted to know whether DeMasters told John Doe that he had been subjected to unlawful sexual harassment. DeMasters confirmed that he had. Two days later Carilion Clinic terminated DeMasters employment. The following reasons were offered in support of the termination:
- DeMasters made statements that could reasonably have led John Doe to conclude that he should file suit against Carilion Clinic
- DeMasters failed to perform or act in a manner consistent with the best interests of Carilion Clinic
- DeMasters made multiple statements that were contrary to his employer’s best interests and that required disciplinary actions
- DeMasters failed to protect Carilion EAP’s client company
DeMaster’s Unlawful Retaliation Lawsuit
DeMasters sued Carilion Clinic for unlawful retaliation under Title VII claiming that he was fired for opposing unlawful employment practices. The district court granted Carilion Clinic’s motion to dismiss for failure to state a claim. It held that DeMasters failed to state a claim because (1) DeMasters’ communications to Carilion merely constituted a transmission of John Doe’s Complaints and did not constitute opposition to unlawful activity, (2) DeMasters’ criticism of Carilion Clinic’s handling of the investigation did not qualify as opposition to a practice that itself was unlawful and (3) even if his activity was protected, he falls within the “manager rule” exception which states that a manager must step outside of their role as an agent of the company before they can take advantage of the protections afforded by the employment discrimination laws. But the Fourth Circuit Court of Appeals reversed.
First, it held that the district court’s narrowly cabined analysis of whether DeMasters’ engaged in protected activity was unreasonable.
“In sum, nothing in the language of the Opposition Clause nor in its interpretation by the courts supports a myopic analysis under which an employee’s opposition must be evaluated as a series of discrete acts. . . . The touchstone is whether the plaintiff’s course of conduct as a whole (1) ‘communicates to her employer a belief that the employer has engaged in . . . a form of employment discrimination,’ and (2) concerns subject matter that is ‘actually unlawful under Title VII; or that the employee ‘reasonably believes to be unlawful.’”
In light of this standard, the Fourth Circuit concluded that DeMasters had engaged in protected activity. His repeated offers of assistance to the human resources department and his repeated comments regarding the alleged mishandling of the situation made it clear that DeMasters reasonably believed John Doe was being subjected to unlawful harassment and that he was purposefully opposing that conduct.
Second, it held that the “manager rule” (derived from FLSA jurisprudence) was not applicable to retaliation claims under Title VII. If the manager rule applied to all retaliation claims under Title VII then “the categories of employees best able to assist employees with discrimination claims—the personnel that make up EAP, HR, and legal departments—would receive no protection from Title VII if they oppose discrimination targeted at the employees they are duty-bound to protect.”
However, the Fourth Circuit was careful to note that a manager may lose the protections of Title VII if their manner of opposition is unreasonable.
Key Learnings for Employers
- The act of alleging that unlawful activity has occurred is protected even if the allegations later turn out to be false. As long as the complaining employee reasonably believed unlawful activity was occurring at the time the allegation was made, he or she cannot be fired or disciplined for making the accusation.
- Title VII’s opposition clause applies to managerial employees. Therefore, managers involved in internal investigations cannot be fired for taking the complaining employee’s side, agreeing with their accusations or opining on whether they believe the law has been violated.
- Employees may lose the protection of Title VII depending on the manner in which they opposed the alleged unlawful activity. Opposing unlawful activity through physical violence or other unreasonable methods can be grounds for a lawful termination. However, legal counsel should always be contacted before taking such action.
This blog post was drafted by Brian Peterson. He is an associate in Spencer Fane’s Kansas City, MO office.