RETALIATION SUITS UNDER TITLE VII IN THE FOURTH CIRCUIT: PANORAMIC VIEWS & THE REJECTION OF THE MANAGER RULE
Title VII prohibits employment discrimination based on race, color, religion, sex, or national origin. To give effect to this prohibition, the statute imposes liability on employers who retaliate against employees who oppose unlawful employment practices. The U.S. Supreme Court and many federal circuit courts take an expansive view of what constitutes opposition to an unlawful employment practice. In the Fourth Circuit, we know that such opposition may be shown where a plaintiff has filed an informal grievance, an informal protest, or voiced persistent objection about an employment practice that is unlawful under Title VII or is reasonably believed to be unlawful by the employee. This analysis is, however, based on the totality of the circumstances.
In a recent decision, DeMasters v. Carllion Clinic, the Fourth Circuit reminds us just how broad “oppositional conduct” really is, while also rejecting the FLSA’s manager rule exception in Title VII retaliation suits.
The plaintiff, Neil DeMasters, was separated from employment for acting “contrary to his employer’s best interest” after supporting a fellow employee’s sexual harassment complaint and criticizing his employer for the way in which it handled the ensuing investigation. He later sued for retaliation under Title VII. The U.S. District Court for the Western District of Virginia dismissed his complaint, however, holding that none of the instances of “opposition” referenced in the complaint constituted protected activity by themselves and that the “manager rule” would prevent an employee, like DeMasters, who was responsible for reporting discrimination, from imposing liability on his employer under Title VII.
The Fourth Circuit disagreed and rejected the district court’s “myopic analysis” of DeMasters’ alleged oppositional conduct. Instead of examining each instance of alleged oppositional conduct in isolation, the Fourth Circuit explained, the district court should have taken a panoramic view. As the Court put it, “a play cannot be understood on the basis of some of its scenes but only on its entire performance.” While each scene and instance of oppositional conduct can be scrutinized for its purpose, the Court found, a court “must examine the course of a plaintiff’s conduct through a panoramic lens, viewing the individual scenes in their broader context and judging the picture as a whole.” Using this approach, the Fourth Circuit held that DeMasters had properly alleged oppositional conduct in his complaint, insofar as he reported making repeated efforts to help a fellow employee file a discrimination complaint and urging Human Resources to act appropriately in response to the complaint.
The Fourth Circuit also rejected the “manager rule” under Title VII. The Court noted that the “manager rule” has been applied in the context of FLSA retaliation suits, requiring employees to engage in protected activity apart from their role as a company representative and that several district courts had adopted the rule in retaliation suits under Title VII. The manager rule, the Court found, is improper under Title VII because, among other things, Title VII’s anti-retaliation provisions are much broader than the FLSA’s. Moreover, the Court found applying the rule in conjunction with existing Title VII doctrines would frustrate the purposes of the statute.
There are two main takeaways for employers in DeMasters. First, the meaning of protected activity, i.e., oppositional conduct, will be construed broadly from a totality of the circumstances perspective. Though the purpose of alleged opposition conduct may be scrutinized for relatedness to an unlawful employment practice, the standard is quite generous in the context of the totality of the circumstances. Second, employers cannot avoid liability for Title VII retaliation by analogy using the FLSA’s manager rule.