Courts across the country have ruled differently regarding what is protected activity by human resources (HR) and equal employment opportunity (EEO)  personnel to support a retaliation claim under Title VII.  Several courts have held that HR and EEO personnel are not engaged in protected activity if they are simply doing the job they were hired for.

A recent decision by the United States Court of Appeals for the Sixth Circuit, Jackson v Genesee County Road Commission, 2021 WL 2155045 (6th Cir. May 27, 2021), which is recommended for publication, has clarified the scope of protected activity for HR and EEO personnel under the opposition clause of Title VII in the Sixth Circuit.  The opposition clause of Title VII makes it unlawful “…for an employer to discriminate against any of its employees…because they have opposed any practice made…unlawful…by Title VII.”

The Plaintiff, who was the Defendant’s HR director and EEO officer, claimed that the Defendant terminated her employment in retaliation for her investigations of employees’ claims of racial discrimination and her attempts to ensure that the Defendant complied with EEOC regulations.

The District Court found that neither activity qualified as protected activity because the Plaintiff’s conduct did not go beyond her regular job duties as human resource director and because her supervisor expressed support for her efforts.  On appeal, Plaintiff and the United States as amicus curiae argued that a human resources employee does not have to prove that she engaged in conduct outside her job responsibilities to maintain a claim under Title VII’s opposition clause.  The Sixth Circuit agreed.

The Sixth Circuit, citing both the text of Title VII, states that it shall be unlawful for an employer to discriminate against any of its employees.  Its own precedent rejected the District Court’s holding that the opposition clause does not extend to an employee’s regular job duties.

However, the Sixth Circuit did hold that Plaintiff must have a “reasonable and good-faith belief that the opposed practices were unlawful.”

The Sixth Circuit also rejected the Defendant’s argument that the Fair Labor Standards Act manager rule (conduct undertaken while performing assigned human resources jobs and “undertaken for the purpose of protecting the interests of the employer” is not protected activity) should be applied to Title VII claims.

However, the Sixth Circuit rejected Plaintiff’s claim that she could bring suit under the Elliott-Larsen Civil Rights Act’s (“ELCRA”) participation clause for participating in other employee’s discrimination complaints where there was no formal charge with an administrative agency.  The Sixth Circuit held that ELCRA’s participation clause did not extend to participation in another employee’s informal discrimination complaints.  The Plaintiff did not make a claim under Title VII’s participation clause because it specifically requires participation “in an investigation pursuant to a formal charge with an administrative agency.”

In short, the Sixth Circuit has clarified that an HR professional or an EEO officer may make a retaliation claim under the opposition clause for actions taken as part of their regular job duties.  Even though this eliminates a potential technical defense, it should not affect an employer’s practices.  Employers should treat HR representatives like any other employees in basing discipline on performance or behavioral issues.

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About the Author

Tim Howlett is a Member in Dickinson Wright’s Detroit office and the Firm’s Labor and Employment Practice leader.  His practice involves counseling clients on labor and employment issues and litigation. He can reached at 313-223-3662 or howlett@dickinsonwright.com and his bio can be viewed here.