Does Title VII allow a current employer to retaliate against HR for testifying against a former employer?


I’m pretty sure that’s where we left off yesterday. Let me check my notes.

give HR a coronary about ways to get fired (clickbait!),

blog about that 11th Cir. decision,

Day 1 “Manager Exception”; Day 2 “past employment,”

become their lord and savior (sacrilegious?) advocate.

Yesterday, we explored a case involving a human resources manager who claimed that her current employer fired her after it learned that she had earlier given deposition testimony in a pregnancy discrimination lawsuit against her former employer. And we established that Title VII’s anti-retaliation provision applies to HR managers acting in the course of their employment duties, even if their actions would otherwise be protected activity.

But is Title VII’s anti-retaliation provision broad enough to preclude the defendant (i.e., her current employer) from retaliating against the plaintiff because of the testimony she provided in her earlier job (as opposed to assisting one of the defendant’s employees with a discrimination complaint against the defendant)?

To begin to answer the question, the Eleventh Circuit began with a review of Title VII’s opposition clause:

There is nothing in the anti-retaliation provision’s opposition clause that permits an employer to retaliate against one of its employees for opposing an unlawful employment practice of a former employer. The clause forbids retaliation by “an employer” against “any individual” for having “opposed any practice made an unlawful employment practice by [Title VII].” It doesn’t say “opposed any practice of a current employer made an unlawful employment practice by [Title VII].” A former employer’s unlawful employment practice is just as much an unlawful employment practice as one of a current employer. The statutory text makes no distinction between the two. Opposition is opposition, and any unlawful employment practice is any unlawful employment practice.

And the entity that the statutory provision forbids from retaliating is “an employer,” not just the employer whose unlawful employment practice the employee opposed. In this context, as is usually the case, the indefinite article “an” means “any.” [Defendant] is unquestionably “an employer,” and at the time it allegedly retaliated by firing [Plaintiff] it was her employer. (cleaned up).

Yes, language matters. Therefore, the court concluded that “under the opposition clause’s plain language, a current employer may not retaliate for opposition clause conduct even if it is directed at or involves only a former employer.”

Now, some of you real nerds about there may be thinking, “Eric, does Title VII’s ‘participation clause’ protect the plaintiff here too?”

Indeed, it does. I’ll let the Eleventh Circuit explain why:

What we said … with the opposition clause applies with full force to the participation clause. If anything, it is even more apparent with the participation clause.

The relevant part of the participation clause forbids “an employer” from retaliating “against any of his employees … because [s]he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII].” We’ve described the participation clause as using “broad and unequivocal” language that “is straightforward and expansively written.” It is too straightforward, too unequivocal, and too expansively written to silently shelter a manager exception or to have a covert current employer requirement. (cleaned up).

The court then completed what it deemed the “simple” task of applying the participation clause to this case. Defendant is “an employer,” and Plaintiff is among “any” of its employees. She “testified…in any manner.” And not just in any lawsuit. Heck, she had her deposition taken in a Title VII lawsuit. That qualifies as a “proceeding” under Title VII.

Therefore, if Defendant fired Plaintiff for testifying in the deposition in the Title VII lawsuit against her former employer, it violated Title VII’s participation clause.

So, there you have it. Title VII protects HR managers — any employee — who opposes discrimination or participates in a Title VII lawsuit against a current or former employer.


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