Dive Brief:

• Title VII of the Civil Rights Act can protect HR professionals from retaliation for giving deposition testimony against a former employer, the 11th U.S. Circuit Court of Appeals held. In the ruling, the court said a Georgia Pacific HR manager raised trial issues over whether she was fired for doing so, the court said (Patterson v. Georgia Pacific, LLC, No. 20-12733 (11th Cir. June 28, 2022)).
• About 18 months into her job, the HR manager attended a deposition regarding a pregnancy discrimination lawsuit against her previous employer. Her supervisor, the HR director, alleged asked whether she had supported the plaintiffs or the business. She said that when she told him she had testified “for the ladies,” he told her that meant she “went against” her former employer and this “made things clear” to him. He fired her a week later.
• The HR manager sued Georgia Pacific for retaliation under Title VII. After a district court granted the company summary judgment, the 11th Circuit reversed and remanded the case for trial. Employees engage in protected activity when they oppose a former employer’s allegedly unlawful discriminatory practices, the panel held. The lower court also erred in holding that Title VII’s anti-retaliation provision doesn’t apply to managers, including HR managers, when they act in the course of their normal duties, even if their actions would otherwise be protected. There is no such “manager’s rule” or exception in Title VII, the 11th Circuit emphasized. “The anti-retaliation provision applies the same to all employees.”

Dive Insight:

The “manager’s rule” is a court-created doctrine that grew out of cases involving the Fair Labor Standards Act, according to a U.S. Equal Employment Opportunity Commission amicus brief. Under the rule, managerial or HR employees are protected from retaliation for certain FLSA-related activity only if they “step outside” their role of representing the company, the brief explained.

The 11th Circuit is the latest federal appeals court to find that it doesn’t apply to Title VII. For example, last year, the 6th Circuit held that a county EEO officer engaged in protected activity when she investigated and took steps to redress an employee’s race discrimination complaint, even though these actions were part of her normal duties.

However, there is a limitation: HR’s opposition to allegedly unlawful practices must be done in a reasonable manner, the brief pointed out. It cited an 11th Circuit decision in 2020 that found HR officials would be acting in an unreasonable manner if they actively recruited an employee to file a Title VII suit against the company.

Georgia Pacific said it fired the HR manager because she missed a deadline and because she had excessive absences, according to court documents. These were legitimate reasons, but the HR manager presented evidence indicating they were a pretext for retaliation, the 11th Circuit held.

For one, although the HR director and the plant manager testified that there was a deadline, the HR manager testified she was never given one, but she knew the project was urgent, had been in touch with them by email and sent them her results within two weeks. At this stage of the case, the court had to credit her testimony, it said.

Also, the HR director met with the HR manager to discuss the deposition five days after the purported deadline, but he allegedly never mentioned it. His failure to do so undercut Georgia Pacific’s position that the missed deadline was so serious it warranted termination, the 11th Circuit said; “It is, at the least, an issue for the jury.”

The HR director also failed to warn the HR manager about any attendance issues, contrary to the company's progressive discipline policy, she testified. Additionally, he failed to follow Georgia Pacific’s usual procedure for reviewing such issues, she said. He looked into three months of her security badge swipes, but this was not how the company tracked attendance, the HR manager explained. Instead, attendance issues were normally investigated by looking at a full year to identify patterns, she testified.

According to court documents, the HR director didn’t investigate her absences, didn’t know how many available vacation days she had taken that year (she was entitled to 15) and didn’t know how many absences she had in the month before she was fired.

As an HR manager, she would know about company policies and procedures, and an “employer’s deviation from standard procedures can be evidence of pretext,” the 11th Circuit said. The timing of the termination, just a week after the HR director learned of her testimony against the hospital, also suggested pretext, it said.