Check out this insight from JCRED Alum Gregory Brown Jr. ‘18 that was published in the New York State Bar Association’s Labor and Employment Law Journal:
Enough Is Enough: Eliminating the Manager Rule in Title VII Retaliation Cases
By Gregory C. Brown, Jr.
Introduction
The #MeToo movement has brought workplace sexual harassment out of the shadows and into the light of public awareness and conversation. From the resignation of Les Moonves, the former chairman and CEO of CBS, to the firing of Kevin O’Brien, the former chief of staff for the de Blasio administration, there is a plethora of recent examples of workplace sexual harassment across all areas of employment.
Consider Sandeep Rehal.1 Rehal was a former personal assistant to Harvey Weinstein. In her recent lawsuit against Weinstein, she alleged that she was subject to a barrage of sexually degrading and harassing actions. For example, Rehal was required to take dictation of emails from Weinstein while he was naked. When Rehal accompanied Weinstein in his chauffeured car, he would rub between her thighs and touch the back of her legs and buttocks. Rehal was also forced to assist Weinstein in his sexual escapades by, inter alia, managing his supply of erectile dysfunction medication and picking up his used condoms off his office floor. Before Rehal quit she complained to others within
The Weinstein Company regarding Weinstein, including Frank Gil, the Senior Vice President of Human Resources, but all of her complaints were made in vain. In fact, Gil encouraged Weinstein’s behavior by authorizing a bonus payment for Rehal as a reward for locating additional erectile dysfunction medication for Weinstein.2 The Weinstein Company is not an isolated situation. Although many companies and organizations have policies and procedures in place, conduct periodic training, and have dedicated HR staff to address these situations, people like Harvey Weinstein are still getting away with misconduct. Part of the problem could be that HR departments are afraid to take on the C-suite harassers by properly investigating harassment complaints. This problem is aggravated by the fact that HR representatives have less protection from retaliation than the individual who complains of harassment.
Title VII, the New York State Human Rights Law (State Law), and the New York City Human Rights Law (City Law) prohibit retaliation against employees for opposing unlawful employment practices. However, some courts apply a heightened standard to HR managers in determining what opposition activity is protected.3 This “manager rule” requires an HR manager to “step outside his or her role of representing the company” and do more than just pass along a complaint of discrimination in order to be protected from retaliation.4 Essentially, the manager rule requires an HR manager to take an adversarial position against the employer, which does not facilitate the proper handling of employee complaints of discrimination. Accordingly, the manager rule should not be applied in Title VII, State Law, and City Law retaliation cases where an HR manager claims retaliation for fulfilling his or her job duties in connection with the employer’s discrimination policies or the antidiscrimination laws.
What Is the Manager Rule?
Under Title VII, the State Law, and the City Law, an employer may not retaliate against an employee for opposing unlawful employment practices or participating in enforcement proceedings.5 To prove a prima facie case of retaliation, plaintiffs must show that they engaged in protected activity, the employer took an adverse action against them, and there was a causal connection between the protected activity and the adverse action.6 The manager rule states that protected activity does not include an HR manager’s “involvement, as part of his routine job duties, in reporting or investigating incidents of harassment between employees under his supervision.”7
The manager rule originated in the context of retaliation claims under the Fair Labor Standards Act (FLSA). Courts were concerned that “nearly every activity in the normal course of a[n HR manager’s] job would potentially be protected activity” and “[a]n otherwise typical at-will employment relationship could quickly degrade into a litigation minefield.”8 This rule was later imported into Title VII retaliation cases.9
The State Law and City Law suffer from the same defects as Title VII. The defects in the State Law exist “Essentially, the manager rule requires an HR manager to take an adversarial position against the employer, which does not facilitate the proper handling of employee complaints of discrimination.” 14 NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 because its retaliation analysis mirrors that of Title VII. Also, even though the Local Civil Rights Restoration Act of 2005 called for a more liberal construction of the City Law, it is unclear how this impacts the application of the manager rule.10
Reasons to Eliminate the Manager Rule
A. Title VII’s Broader Protections
The FLSA’s anti-retaliation provisions are narrower than Title VII’s anti-retaliation provisions. The FLSA prohibits retaliation against an employee “because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the FLSA], or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.”11 Thus, the FLSA restricts protected activity to three narrow categories: (1) making complaints about one’s pay; (2) testifying in a proceeding about one’s pay; and (3) serving on an industry committee.
In contrast, Title VII’s anti-retaliation provision covers a wide range of activity. Title VII prohibits retaliation against an employee “because he has opposed any practice made an unlawful employment practice by [Title VII], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII. 12 Not only does this provision encompass participation in an EEOC proceeding, but it also includes opposition to any unlawful employment practice under Title VII, including discrimination based on race,13 color,14 national origin,15 sex,16 religion,17 pregnancy,18 and sexual harassment.19 In addition, as Title VII’s coverage expands to include more protected classes, Title VII’s opposition clause expands to cover more oppositional conduct.20 Since Title VII’s anti-retaliation provision was intended to provide more coverage than the FLSA, the purposes for adopting the manager rule in the FLSA context are not transferrable to Title VII cases.21
B. Inconsistent Application of the Manager Rule Courts that apply the manager rule deprive HR managers of protection from retaliation for investigating discrimination complaints.
For example, in Brush v. Sears Holdings Corporation, plaintiff was responsible for investigating a complaint of workplace sexual harassment.22 During a one-on-one investigative interview, the complaining employee told plaintiff that the accused harasser raped her multiple times.23 Plaintiff reported this to the employer and encouraged the employer to contact the police, but the employer declined to do so.24 Instead, plaintiff was subsequently fired.25 In applying the manager rule, the court held that the actions plaintiff took to investigate the sexual harassment complaint were not protected under Title VII.26
Even when courts decide not to apply the manager rule, they apply a modified version that has the same practical effect. In Littlejohn v. City of New York, the Second Circuit rejected the manager rule while still holding HR managers to a higher standard as compared to other employees.27 The Littlejohn court held that HR managers engage in protected activity when they “actively support other employees in asserting their Title VII rights or personally complain or [are] critical about the discriminatory employment practices of [their] employer.”28 Even though the court explicitly rejected the manager rule, the standard in Littlejohn has the same practical effect—the HR manager still needs to stand toe-to-toe with his or her employer in opposing the employer’s discriminatory conduct in order to gain protection from retaliation. Taking prompt and effective action to investigate a complaint or implement corrective measures is not enough for the HR manager to be protected from retaliation. Littlejohn has been inconsistently applied by district courts throughout the Second Circuit,29 and there are many cases like Littlejohn throughout the United States that impose higher burdens on HR managers in retaliation cases where the HR manager investigated discrimination complaints.30 Due to the inconsistencies in how courts apply the manager rule, eliminating the manager rule is necessary to provide uniform standards for HR managers across the country and for HR managers in national firms who handle discrimination and harassment complaints across multiple jurisdictions and states.
C. HR’s Failure to Investigate
Above all, the manager rule discourages HR managers from investigating complaints of discrimination. HR managers may not be willing to put their jobs and livelihoods at risk to ensure each complaint of discrimination is properly addressed and resolved. This leaves complaints unaddressed, which creates an environment that fosters discrimination. This discriminatory environment is the most disturbing effect of the manager rule on the workplace.
In the backdrop of the #MeToo movement, many current and former employees have recounted failures by HR to investigate complaints of discrimination and the impact it had on the workplace. For example, a former employee at Vice Media claimed that a high-level executive grabbed her breasts and buttocks at a company holiday party. 31 When the employee reported this incident to the HR manager, Nancy Ashbrooke, the employee said that Ashbrooke told her to “just forget about it and laugh it off.”32 This behavior creates an environment that tolerates, if not endorses, sexual harassment in the workplace.
An HR manager’s failure to investigate can also subject the employer to future liability. For example, in a Title VII sexual harassment case, employers will be unable to avail themselves of the Ellerth/Faragher defense to avoid liability. This defense has two prongs: (1) the employer exercised reasonable care to promptly prevent and correct NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 15 any sexually harassing behavior, and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.33 If the HR manager ignored sexual harassment complaints and declined to investigate them, then the employer did not exercise reasonable care to promptly correct the sexually harassing behavior. Also, if the sexual harassment complaints are routinely not addressed, an employee who does not make a formal complaint to the HR manager cannot be found to have unreasonably failed to take advantage of the employer’s complaint system, for the employee would have rightly believed that no action would be taken after making a complaint. Thus, as recent news events have shown, a “do-nothing” HR manager will certainly have negative legal implications for the employer and the complaining employee.
Rejecting the Floodgates Argument
Proponents of the manager rule claim that HR managers should not be able to build a retaliation claim simply by doing their jobs. They justify the manager rule as necessary to control litigation floodgates. This argument fails for two reasons.
The Supreme Court recently reiterated that “[w]hen 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,” which means that protected activities are not limited to complaints of discrimination against the complainant.34 Communicating “a belief” that the employer engaged in discrimination also includes “complaints of discrimination on behalf of other employees and complaints of discriminatory practices generally.”35 Thus, Supreme Court precedent supports the idea that an HR manager can engage in protected oppositional activity by simply processing complaints made by other employees.
Moreover, even when processing a complaint is considered protected activity, the HR manager still needs to prove the other elements for a prima facie case of retaliation, including that processing the complaint was a “but for” cause of the alleged adverse action against the HR manager.36 “But for” causation is a difficult standard to meet, and it will serve to protect employers from a flood tide of meritless retaliation claims by HR managers.
Conclusion
The manager rule has no place in Title VII retaliation cases. HR managers are in the best position to assist employees that have discrimination complaints, so they should be given the same level of Title VII protection that other employees have. To ensure HR managers enjoy the same protections as other employees, the following amendment should be made to Title VII, 42 U.S.C. § 2000e-3:
(c) Human Resources Managers; Protected Activity
As used in subparagraph (a), the phrase “opposed any practice” shall include (1) when an employer’s human resources manager receives an oral or written complaint of discrimination alleging an unlawful employment practice under this subchapter, and (2) any conduct that an employer’s human resources manager reasonably undertakes or recommends to investigate discrimination complaints, implement corrective action, remedy violations, or institute policies, procedures, or training to promote compliance with anti-discrimination and anti-retaliation laws, rules, and regulations. As used in the preceding sentence, the term “human resources manager” includes any person who is authorized by the employer to perform any function in connection with reporting, receiving, investigating, processing, or resolving complaints under, or conduct covered by, applicable discrimination laws, rules, or policies.
Similarly, the following amendment should be made to the State Law, New York Executive Law § 296(7):37
It shall be an unlawful discriminatory practice for any person engaged in any activity to which this section applies to retaliate or discriminate against any person because he or she has opposed any practices forbidden under this article or because he or she has filed a complaint, testified or assisted in any proceeding under this article. As used in this subdivision, the phrase “opposed any practices” shall include (1) when an employer’s human resources manager receives an oral or written complaint of discrimination alleging an unlawful employment practice under this subchapter, and (2) any conduct that an employer’s human resources manager reasonably undertakes or recommends to investigate discrimination complaints, implement corrective action, remedy violations, or institute policies, procedures, or training to promote compliance with antidiscrimination and anti-retaliation laws, rules, and regulations. As used in the preceding sentence, the term “human resources manager” includes any person who is authorized by the employer to perform any function in connection with reporting, receiving, investigat- 16 NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 ing, processing, or resolving complaints under, or conduct covered by, applicable discrimination laws, rules, or policies.
In addition, the following amendment should be made to the City Law, New York City Administrative Code § 8–107(7):38
Retaliation. It shall be an unlawful discriminatory practice for any person engaged in any activity to which this chapter applies to retaliate or discriminate in any manner against any person because such person has (i) opposed any practice forbidden under this chapter, (ii) filed a complaint, testified or assisted in any proceeding under this chapter, (iii) commenced a civil action alleging the commission of an act which would be an unlawful discriminatory practice under this chapter, (iv) assisted the commission or the corporation counsel in an investigation commenced pursuant to this title, or (v) provided any information to the commission pursuant to the terms of a conciliation agreement made pursuant to section 8-115 of this chapter. The retaliation or discrimination complained of under this subdivision need not result in an ultimate action with respect to employment, housing or a public accommodation or in a materially adverse change in the terms and conditions of employment, housing, or a public accommodation, provided, however, that the retaliatory or discriminatory act or acts complained of must be reasonably likely to deter a person from engaging in protected activity. As used in this subdivision, the phrase “opposed any practice” shall include (1) when an employer’s human resources manager receives an oral or written complaint of discrimination alleging an unlawful employment practice under this subchapter, and (2) any conduct that an employer’s human resources manager reasonably undertakes or recommends to investigate discrimination complaints, implement corrective action, remedy violations, or institute policies, procedures, or training to promote compliance with antidiscrimination and anti-retaliation laws, rules, and regulations. As used in the preceding sentence, the term “human resources manager” includes any person who is authorized by the employer to perform any function in connection with reporting, receiving, investigating, processing, or resolving complaints under, or conduct covered by, applicable discrimination laws, rules, or policies.
Armed with the same protection as individuals who complain of harassment, this proposed solution will encourage HR managers to thoroughly investigate discrimination complaints and take corrective action against the culprits. In light of the recent proposed amendments to the State Law, I encourage the New York State Legislature to codify this protection for HR managers.
Endnotes
1. The following facts are excerpted from plaintiff’s complaint in Rehal v. Weinstein, No. 151738/2018 (Sup. Ct. N.Y. Cty. Feb. 27, 2018). The facts alleged in the Rehal complaint are recited for purposes of illustration only, and the author does not express a belief as to their ultimate truth or falsity, which will be determined by the judge and jury in that case. 2. In his answer, Gil denied that he authorized this bonus payment and that Rehal complained to him about Weinstein. Answer at 6, Rehal v. Weinstein, No. 151738/2018 (Sup. Ct. N.Y. Cty. Aug. 16, 2018), NYSCEF No. 29. 3. In this article, the term “HR manager” includes personnel managers, EEO officers, and other employees who are charged with investigating reports of discrimination in the workplace. 4. McKenzie v. Renberg’s Inc., 94 F.3d 1478, 1486 (10th Cir. 1996). 5. 42 U.S.C. § 2000e-3(a); N.Y.C. Admin. Code § 8-107(7). 6. Some circuits also require plaintiffs to show that the employer had knowledge of plaintiff’s protected activity. See, e.g., Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010). 7. Littlejohn v. City of New York, 795 F.3d 297, 317 (2d Cir. 2015) (citations omitted) (internal quotation marks omitted). 8. Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 628 (5th Cir. 2008). 9. See, e.g., Brown v. Xerox Corp., 170 F. Supp. 3d 518, 527 (W.D.N.Y. 2016). 10. N.Y.C. Local L. No. 85, § 1 (noting that the City Law was “construed too narrowly to ensure protection of the civil rights of all persons covered by the law” and the City Law must “be construed independently from similar or identical provisions of New York state or federal statutes”). 11. 29 U.S.C. § 215(a)(3). 12. 42 U.S.C. § 2000e-3(a). 13. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). 14. Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132 n.5 (4th Cir. 2002). 15. Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88 (1973). 16. L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 711 (1978). 17. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 66 (1977). 18. Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e(k) (amending Title VII to prohibit discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions”). 19. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986). 20. See Zarda v. Altitude Express, Inc., 883 F.3d 100, 112-13 (2d Cir. 2018) (holding that Title VII prohibits sexual orientation discrimination). 21. See DeMasters v. Carilion Clinic, 796 F.3d 409, 422 (4th Cir. 2015) (“[W]hatever place [the manager rule] may have in FLSA jurisprudence, [it] . . . does not apply to Title VII.”). 22. 466 F. App’x 781 (11th Cir. 2012). 23. Id. at 784. 24. Id. NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 17 25. Id. 26. Id. at 787-88. 27. 705 F.3d 297 (2d Cir. 2015) 28. Id. at 318 (citation omitted) (internal quotation marks omitted). 29. See, e.g., Brown v. Xerox Corp., 170 F. Supp. 3d 518, 527 (W.D.N.Y. 2016) (finding that plaintiff did not engage in protected activity by advocating for certain minority employees to receive promotions because plaintiff made no indication “that any of these employees’ Title VII rights had been violated or that they had been discriminated against”); Brooking v. N.Y. State Dep’t of Taxation & Fin., No. 1:15-CV-0510 (GTS/CFH), 2016 WL 3661409, at *12 (N.D.N.Y. July 5, 2016) (finding that plaintiff engaged in protected activity when he, inter alia, “complained to his supervisors about prevalent discrimination in the Department [and] reinforced the imperative that the Department had to be ‘willing to take action’ to address [their] discrimination issues”); Cooper v. N.Y. Dep’t of Labor, No. 1:14-CV-0717 GTS/CFH, 2015 WL 5918263, at *6 (N.D.N.Y. Oct. 9, 2015), aff’d sub nom. Cooper v. N.Y. State Dep’t of Labor, 819 F.3d 678 (2d Cir. 2016) (finding that plaintiff did not engage in protected activity by advising the DOL and GOER that their proposed complaint-handling procedures would conflict with federal regulations regarding nondiscrimination; plaintiff did not allege facts “plausibly suggesting that she reasonably believed the DOL and GOER were engaging in unlawful discrimination through the new complaint-handling procedures”). 30. See, e.g., Gogel v. Kia Motors Mfg. of Ga., Inc., 904 F.3d 1226, 1229 (11th Cir. 2018) (holding that HR managers engage in protected activity when they “support[ ] other employees in asserting their Title VII rights, and the manner of their support is reasonable”); Pippin v. Boulevard Motel Corp., 835 F.3d 180, 183-84 (1st Cir. 2016) (finding that an HR manager can engage in protected activity under the Maine Whistleblowers’ Protection Act if the employee shows “that her report [of unlawful activity] was made to shed light on and in opposition to [the defendant]’s potential illegal acts”); see also Ezuma v. City Univ. of N.Y., 665 F. Supp. 2d 116, 123 (E.D.N.Y. 2009), aff’d, 367 F. App’x 178 (2d Cir. 2010) (“[T]he mere passing on of [a complainant’s] statements by a supervisor or human resources manager is not inherently ‘oppositional’ in the same way as the victim’s own report of that misconduct. The introduction of an intermediary at least has the potential to remove the oppositional element from the intermediary’s report.”). 31. Emily Steel, At Vice, Cutting-Edge Media and Allegations of OldSchool Sexual Harassment, N.Y. Times (Dec. 23, 2017), https:// www.nytimes.com/2017/12/23/business/media/vice-sexualharassment.html. 32. Id. Ironically, Ashbrooke was the former Vice President of Human Resources at Miramax—another Weinstein entertainment company. 33. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). The Ellerth/Faragher defense is not available for claims brought under the City Law. Zakrzewska v. New Sch., 14 N.Y.3d 469, 479, 902 N.Y.S.2d 838, 842 (2010). 34. Crawford v. Metro. Gov’t of Nashville & Davidson Cty., 555 U.S. 271, 276 (2009) (first emphasis added) (internal quotation marks omitted). 35. Littlejohn v. City of New York, 795 F.3d 297, 317 (2d Cir. 2015). 36. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352 (2013). 37. The text in bold is the proposed language to be added to the State Law. 38. The text in bold is the proposed language to be added to the City Law.
Gregory C. Brown, Jr. is an associate at Milman Labuda Law Group PLLC.
Many thanks to David R. Marshall, Of Counsel at Locke Lord LLP, for his constructive feedback on this article.
Reprinted by permission of the Labor & Employment Law Section, NYSBA, 1 Elk St., Albany NY 12207.