In a discussion the other day about ethics I posed the question “What do you do if you feel your employer’s actions are discriminatory, you advise against the action, yet your employer proceeds with the discriminatory action?” From an ethical standpoint do you quit, keep your mouth shut and carry on, or report your employer to the government? Which answer you select, in my opinion, will depend on your personal circumstance. But now I pose another question for your consideration. What happens if you report you objection to the discrimination and are then terminated or disciplined as a result of your objection? Do you have any protection under anti-retaliation provisions of the EEOC?
New guidance on retaliation
On January 21, 2016 the EEOC announced new guidance on retaliation. Employers and other interested parties have until February 24th to make comments. Reading through the announcement and the discussion I found that the EEOC is making it clear that managers and HR professionals do have protection from retaliation when they are objecting to discriminatory actions being taken by their employer. Previously there was something called the “manager rule” taken by some courts which required that managers must “step outside” their management role and assume a position adverse to the employer in order to engage in protected activity. The EEOC has rejected this interpretation. They said:
Section 704(a) cannot function, as intended, to protect efforts to end Title VII violations, if those employees best situated to call attention to and oppose an employer’s discriminatory practices are outside its protective ambit. By depriving them of protections under the statute, courts create a disincentive for them to carry out their duties – especially for those whose duties often include ensuring compliance with antidiscrimination laws. Moreover, the statutory purpose is promoted by protecting all such communications about potential EEO violations by the very officials most likely to discover, investigate, and report them.
According to the EEOC “the ‘manager rule’ discourages supervisory employees from fulfilling their duty to report harassment and participate in internal investigations because it leaves them unprotected from retaliation.”
The good news
As a result of this newly issued, to be released in a final version in the fall 2016, HR employees will have some course of action if they are disciplined for objecting to their employer’s actions. They do point out however, that there will still be a burden of proof that has to be met, as in all retaliation cases. According to the EEOC:
A managerial employee with a duty to report or investigate discrimination still must satisfy the same requirements as any other employee alleging retaliation under the opposition clause described below — meeting the definition of “opposition,” acting with a reasonable and good faith belief that the opposed practice is unlawful (or would be if repeated), and using a manner of opposition that is reasonable. A managerial employee who satisfies these requirements for oppositional conduct must also establish the other elements required for a valid retaliation claim, including a materially adverse action and causation. Moreover, when an employer identifies a legitimate, non-retaliatory reason for the adverse action, the employee will have to produce enough evidence to discredit the employer’s explanation and prove the real reason was retaliation.
Thus HR and other managerial employees are provided some protection against the retaliatory job actions of their bosses.