If you try to prevent or end workplace discrimination as part of your job, is it legal for your employer retaliate against you?

Inquiring HR professionals, in-house lawyers, and counselors want to know!

The U.S. Court of Appeals for the Third Fourth Circuit says no – Title VII’s anti-retaliation protections apply to you, too.

In a very significant decision that all employers should read, a panel of Third Circuit judges sitting by designation for the Fourth Circuit*, said that Title VII protects even “compliance” employees who may be “opposing” discrimination as part of their regular job duties.

*According to the decision, every Fourth Circuit judge had to be recused from hearing the case. I assume this means that the defendants provide health care for Fourth Circuit judges and employees. The Fourth Circuit hears appeals from federal courts in Maryland, the Carolinas, Virginia, and West Virginia.

Neil DeMasters was an Employee Assistance Program consultant for Carilion Behavioral Health, which provided EAP services to Carilion, an owner and operator of hospitals. As part of his job, he counseled a Carilion employee who said that his supervisor was behaving toward him in a vile and obscene manner, the details of which you can read in the decision. Mr. DeMasters told the employee that he was a victim of sexual harassment and encouraged him to make a complaint with Human Resources. The employee did, and the harassing supervisor was immediately fired.

[W]e find it . . . troubling that . . . the categories of employees best able to assist employees with discrimination claims – the personnel that make up EAP, HR, and legal departments – would receive no protection from Title VII if they oppose discrimination targeted at the employees they are duty-bound to protect.” — Fourth Circuit panel decision in DeMasters v. Carilion, et al.

According to the lawsuit, this did not end the employee’s ordeal. The employee came back to Mr. DeMasters several times and said that his co-workers were retaliating against him because they liked the supervisor and were mad at the employee for getting him fired. Mr. DeMasters again urged the employee to go to HR, and Mr. DeMasters also communicated directly with HR. According to the lawsuit, HR didn’t do much in response to the retaliation complaints, and the employee ultimately filed a charge of discrimination with the Equal Employment Opportunity Commission, which Carilion settled.

A few weeks after the settlement, Carilion called Mr. DeMasters in for a meeting, which included Carilion’s vice president of HR and the general counsel. According to Mr. DeMasters, they grilled him about his involvement in the employee’s complaints and chewed him out for being disloyal to Carilion. Two days later, they fired him. The termination letter said that he was being fired, essentially, for being too loyal to the employee and not loyal enough to Carilion. Mr. DeMasters sued for retaliation, and a federal judge in Virginia dismissed the lawsuit for failure to state a valid claim, in part because there was a “manager rule” saying that an employee can’t sue for retaliation based on Title VII activity that is just part of the employee’s job.

(Because Mr. DeMasters’ lawsuit was thrown out at the very beginning, the courts had to assume that all of his allegations were true. Carilion will have a chance later to present evidence to the contrary. But I assume that termination letter does exist, which could be a problem for Carilion.)

On appeal, the panel reversed and said that Mr. DeMasters did have a valid claim for retaliation under Title VII. According to the panel, the manager rule applies to retaliation claims under the Fair Labor Standards Act, which has narrower anti-retaliation protections than does Title VII. But because Title VII’s protections are broader, the panel said that the rule should not apply in the Title VII context.

If the manager rule applied, an employer inclined to discriminate could hire an affirmative action official to give the false impression that the employer wanted to eliminate discrimination, but then retaliate against the official knowing that the employer could never be held accountable.” – Johnson v. University of Cincinnati (actual language in decision has been simplified by me).   

The Sixth Circuit has said the same thing, in the context of a retaliation claim brought by an affirmative action compliance employee. Meanwhile, in two unpublished decisions, the Tenth Circuit and Eleventh Circuit have applied the manager rule in the Title VII context. I blogged about the Eleventh Circuit decision when it came out. (For listing of the states in each of these circuits, go here.)

I have mixed feelings about this “manager rule” issue. On one hand, I agree with what the Third Fourth Circuit is saying, especially in the context of an EAP counselor (who, in my opinion, isn’t even really a “compliance” employee) who’s trying to help a client who is being sexually harassed. On the other hand, I fear that the Third Fourth and Sixth circuit rule could make it awfully easy for employees in compliance roles to be able to claim retaliation in connection with just about any adverse action. And how about the compliance people (we employment lawyers have seen them, I promise) who are being counseled, disciplined, or terminated because they didn’t do their jobs — and then claim they were retaliated against because they complained about discrimination that it was their job to address. Grrrrr.

Sounds like an issue for the Supreme Court!

Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.


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