After nearly 38 years as an employment lawyer, there are some old saws of mine I pull out (rarely, thank goodness) when talking to clients. For example, after discussing the underlying issues in a pesky employment matter, a member of management might say “why can’t we just fire this person…?” My go-to response is “well, yes, Congress knew some people felt that way and that’s why they passed a law against it.”
As most folks know, it is illegal to take an “adverse employment action” against an employee who has engaged in activities protected under anti-discrimination laws. This is called retaliation. There are two types: opposition and participation. Today’s story involves a “participation” retaliation claim.
In Patterson v. Ga. Pac., LLC, 38 F.4th 1336 (11th Cir. 2022), the Eleventh Circuit reversed the dismissal of a complaint alleging that an HR manger was fired for testifying in a pregnancy discrimination case that was filed against her former employer.
Patterson was hired by Georgia Pacific as an HR manager. While working there she was deposed in a case involving her prior employer, Memorial Hermann where she had also worked in HR. After her deposition, her supervisor asked her what it was about. According to the appellate court:
“Patterson told him that ‘three female employees were terminated from [her] previous employer while on FMLA and had filed an EEOC case’ and that each had been pregnant or had just given birth when fired. Hawkins asked Patterson in regard to her deposition testimony: ‘Did you support or go against the employer?’ When Patterson told him she’d testified ‘on behalf of the ladies,’ as she put it, Hawkins told Patterson that meant she ‘went against’ her previous employer and that her having done so ‘made things clear’ to him.”
This was said…By…An…HR…Supervisor. Really. And then, a week later, Patterson was fired. But wait, it gets better.
Patterson sued pro se, and the (newly appointed) district court judge granted Georgia Pacific’s motion to dismiss. Why? According to the court, Patterson could not have engaged activity protected by anti-discrimination laws because (1) she was an HR manager (the “manager exception”); and (2) she did not testify against her current employer (the “current employer requirement”).
This sort of answer would have resulted in a “D-” (which I think should be more embarrassing than an “F”) on any exam I gave law students in my employment discrimination class. Let’s unpack why.
First, there is no manager exception. To be fair to the district court here, it did rely on an unpublished (incorrect) 2012 opinion from the Eleventh Circuit for support. Rejecting that view, the appellate court put it well: Title VII “does not indicate that any employee or category of employees, like HR managers, is to be analyzed under a special rule or subjected to a different legal standard than other employees or categories of them. The anti-retaliation provision applies the same to all employees. Congress did not enact a rule based on job duties or exclude from protection any type of employee based on her job duties.”
Second, there is no “current employer requirement.” The Supreme Court long ago in Robinson v. Shell Oil Co., 519 U.S. 337 (1997), explained that Title VII’s retaliation provisions don’t apply just to a current employer/employee relationship. In Robinson, a former employee was being “blacklisted” by his old employer because he had raised discrimination concerns while employed there.
Patterson’s case is the other side of the same coin. A current employee cannot be retaliated against by her employer for engaging in protected activities regarding a former employer.
But let’s return to the fact this was a “participation” case. The Eleventh Circuit (kindly) noted that it was “not clear from the district court’s order whether it overlooked the participation clause claim or whether it applied the same interpretation to both the opposition and participation clauses.” It matters not which; either way it’s sad.
Unlike the opposition clause, which requires that an employee’s activity be in “good faith,” the participation clause offers much broader protection. A person who testifies in a deposition, in court, is a witness before the EEOC, or otherwise engages in the administrative or judicial process over rights protected by anti-discrimination laws is absolutely protected from retaliation for participating in an activity involving the legal system.
The Eleventh Circuit reversed and remanded the case to the district court to proceed. The court also gave a shout out to the court-appointed lawyer who helped Ms. Patterson navigate her way through the appellate process noting that “his acceptance of that appointment and his representation of her are in the finest tradition of the bar.”
The takeaway here? It’s good we have appellate review and lawyers who know the law. And, employers – train your HR folks please.