Title VII’s anti-retaliation provision 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.” 42 U.S.C. § 2000. This provision serves to “prevent an employer from interfering (through retaliation) with an employee’s efforts to secure or advance enforcement of the Act’s basic guarantees.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). The first part of this provision is called the “opposition clause,” which prohibits retaliation against an employee who “opposed any practice made an unlawful employment practice by” Title VII. Patterson v. Georgia Pacific, LLC, et al., 2022 WL 2445693 (11th Cir. July 5, 2022). Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach. Such claims include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.
The United States Supreme Court has concluded that “[w]hen an employee communicates to her employer a belief that the employer has engaged in . . . a form of employment discrimination, that communication virtually always constitutes the employee’s opposition to the activity.” Crawford v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn., 555 U.S. 271 (2009). Some federal courts generally recognize “oppositional conduct” as conduct that “encompasses utilizing informal grievance procedures as well as staging informal protests and voicing one’s opinion in order to bring attention to an employer’s discriminatory activities.” Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253 (4th Cir. 1998).
Other federal courts apply the “manager exception” when determining oppositional conduct and evaluating retaliation claims under the Fair Labor Standards Act (“FLSA”). This exception requires an employee to “step outside his or her role of representing the company” to engage in protected activity. McKenzie v. Renberg’s Inc., 94 F.3d 1478 (10th Cir. 1996). Courts apply this exception because “nearly every activity in the normal course of a manager’s job would potentially be protected activity,” and “[a]n otherwise typical at-will employment relationship could quickly degrade into a litigation minefield.” Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617 (5th Cir. 2008). Several district courts have imported the manager exception into Title VII’s anti-retaliation provision. DeMasters v. Carilion Clinic, 796 F.3d 409 (4th Cir. 2015).
In a recent appellate decision, however, the United States Court of Appeals for the Eleventh Circuit created new legal precedent on this issue. In Patterson v. Georgia Pacific, LLC, et al., the Eleventh Circuit Court of Appeals reasoned that, unlike the managerial exception applicable to the FLSA’s opposition clause, the text and rule concerning Title VII’s opposition clause’s protections extend to “any” employee who “has opposed any practice made an unlawful employment practice.” 2022 WL 2445693 (11th Cir. July 5, 2022). This appellate decision is significant. An implication of this case is there is no exception to protection from retaliation for a human resources manager who opposes his/her employer’s unlawful conduct.
Patterson reasoned that human resources managers fall into the category of “all employees.” The statutory definition of an “employee” does not have any carve out or exclusion of human resources managers that would remove them from the protection of the opposition clause. Thus, Patterson concluded that “[t]he anti-retaliation provision applies the same to all employees.” Patterson v. Georgia Pacific, LLC, et al., 2022 WL 2445693 (11th Cir. July 5, 2022).
Because of the Eleventh Circuit Court of Appeals’ recent holding in Patterson, employers must articulate a legitimate nondiscriminatory reason for its alleged retaliation to defeat a prima facie case of retaliation under Title VII in the Eleventh Circuit. Wolf v. Coca-Cola Co., 200 F.3d 1337 (11th Cir. 2000). Accordingly, the employer will defeat a Title VII retaliation claim if an employee cannot produce evidence showing the employer’s legitimate nondiscrimination reason was pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).
Peter Mavrick is a Fort Lauderdale employment lawyer, and represents clients in Miami, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.