Hold up! Is there an “HR manager” exception that allows employers to retaliate against HR?


Last night, I read this recent decision from a three-judge panel on the Eleventh Circuit Court of Appeals. It involves 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.

Assuming this to be accurate, did the current employer violate Title VII of the Civil Rights Act of 1964?

The first question is whether 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.

Is there an HR manager exception?

To help answer that question, let’s review Title VII’s anti-retaliation provision. Title VII makes it “an unlawful employment practice for an employer to discriminate against any of [its] employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” The first part of that provision, ending at the first comma in the quotation, is called the “opposition clause.” The second part is called the “participation clause.”

The statute clarifies that employers cannot retaliate against “any of [its] employees.” Any means unlimited in amount, or “all.”

Nothing in the text of Title VII indicates that Congress intended to qualify “any.”  Therefore, any (or all) employees include HR Managers. Thus, the anti-retaliation provisions apply to HR managers too.

The Eleventh Circuit agreed:

The statutory text does not indicate that any employee or category of employees, like HR managers, is to be analyzed under a special rule or subjected to a different legal standard than other employees or categories of them. The anti-retaliation provision applies the same to all employees. Congress did not enact a rule based on job duties or exclude from protection any type of employee based on her job duties…What matters is not the job duties or title of the employee but the actions or conduct that caused the retaliation against her…It is too big a stretch to think that Congress silently and implicitly wrote into the opposition clause a significant exclusion of an entire category of employees, HR managers. We “assume that Congress does not generally hide elephants in mouseholes.”

So, Title VII’s anti-retaliation provisions cover HR managers. But do they apply to a current employer based on protected activity involving an employee and a former employer?

Come back tomorrow for the answer to that question.

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