Mark’s paper addresses this topic in depth. Employers sometimes fear that human resources personnel or other managers involved in employee relations may themselves bring claims of retaliation. This can be worrisome for many fairly obvious reasons. But, most courts have imposed a higher standard for human resources personnel to engage in protected oppositional activity under Title VII and other similar laws. This line of cases has also been extended to managers not employed in a human resources capacity, who happen to become involved in an employee relations matter as part of their ordinary job duties.
Specifically, when human resources managers provide their opinions regarding personnel decisions, how to handle discrimination complaints, or other normal human resources related issues, most courts have held that is not protected from retaliation under Title VII and other similar laws. Rather, most courts hold that for human resources managers to engage in protected oppositional activity under Title VII and other similar laws, they must step outside their job’s normal role, and clearly establish that they are engaging in protected oppositional or participative activities other than the normal work involved with their job.
The Fifth Circuit succinctly explained the basis for this rule, and extended it to the context of a supervisor who was not employed in a human resources role, but claimed retaliation under the FLSA when he was terminated shortly after passing along an FLSA related complaint to the human resources department:
[A] part of any management position often is acting as an intermediary between the manager’s subordinates and the manager’s own superiors. The role necessarily involves being mindful of the needs and concerns of both sides and appropriately expressing them. Voicing each side’s concerns is not only not adverse to the company’s interests, it is exactly what the company expects of a manager.
If we did not require an employee to “step outside the role” or otherwise make clear to the employer that the employee was taking a position adverse to the employer, nearly every activity in the normal course of a manager’s job would potentially be protected activity under [Section 215(a)(3) of the FLSA]. An otherwise typical at-will employment relationship could quickly degrade into a litigation minefield, with whole groups of employees-management employees, human resources employees, and legal employees, to name a few – being difficult to discharge without fear of a lawsuit. For those reasons, we agree that an employee must do something outside of his or her job role in order to signal to the employer that he or she is engaging [in] protected activity . . .
Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 628 (5th Cir. 2008).
It is worth noting that there is at least one district court case in which the judge stated his belief that this line of authority has been abrogated or significantly weakened by the U.S. Supreme Court’s decision in Crawford v. Metro. Gov’t of Nashville and Davidson Cnty., 555 U.S. 271, 129 S. Ct. 846 (2009). See, e.g., Schanfield v. Sojitz Corp. of America, 663 F. Supp. 2d 305, 342 (S.D.N.Y. 2009) (“I thus decline to accept Defendants’ argument that Schanfield’s retaliation complaint must be dismissed because it was his job as an internal auditor to identify litigation risks.”). Whether that one case turns into a trend is something to keep an eye on. So far, it has not.