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Imagine this. You hire an
HR manager to investigate and resolve internal employee complaints. You later learn that instead of doing her job, the HR manager is encouraging employees to file Charges of Discrimination and even referring employees to “her” lawyer. During this time period, the HR manager also files her own Charge. You can fire the HR manager, right? Well, only if you want to buy yourself a retaliation claim.
This was the fact pattern of a case recently decided by the 11th Circuit Court of Appeals – which is the appellate court governing Florida, Alabama and Georgia. In Gogel v. Kia Motors Mfg. of Georgia, Inc., the employer argued that the HR manager’s role was to investigate and resolve internal employee disputes, and by encouraging employees to pursue litigation, the manager failed to perform a core function of her position.
Typically, assisting a coworker with filing an EEOC charge is a protected activity under Title VII’s anti-retaliation provision. However, the 11th Circuit had previously held when the protected conduct is “so disruptive or inappropriate,” it can lose its protection under Title VII. For example, when a HR employee violates the employer’s procedures for handling complaints, such actions may no longer be protected by the law. This was the primary argument raised by the employer as to why the termination decision was not retaliatory.
Unfortunately for the employer in this case, there was evidence that its complaint procedures were inadequate. In its analysis, the court pointed to several instances where the HR manager claimed she tried to take her subordinate’s complaints to management. Each time, the HR manager was rejected and told not to investigate. Furthermore, the HR manager provided the name of her attorney to other employees only after years of management allegedly not taking these complaints seriously. The court found that while the HR manager had stepped outside of her job duties by encouraging others to file charges, a jury could conclude that her conduct was reasonable given these circumstances.
While the facts of this case are certainly unique, it serves as a good reminder to ensure that your company’s internal complaint procedures are indeed adequate and allow for claims to be fully investigated. Completing thorough internal investigations, and documenting those findings, may be the best method to insulate your company from an employee gone rogue.
*Special thanks to Thomas Raine, who assisted in the drafting of this post. Thomas is a third year Juris Doctor Candidate at the University of Miami School of Law.