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A recent opinion from the Eleventh Circuit Court of Appeals
reminds us that proper handling of harassment claims in the
workplace remains a top priority of management and can have
repercussions for the one conducting the investigation. Title VII
of the Civil Rights Act prohibits employers from discriminating
based on an employee's race, color, religion, sex, or national
origin. In Brush v. Sears Holdings Corp., the Court held
that Title VII does not protect an internal investigator who
disagrees with the way an investigation was handled.
Janet Brush, a Loss Prevention District Coach and employee of
Sears for 15 years, investigated a female employee's claim of
sexual harassment. The company directed Brush and a male employee
to interview the complaining employee. When they both believed the
employee was not forthcoming during the interview, they decided
Brush, a female, should meet with the employee alone, in violation
of company policy for conducting investigations. During the second
interview, the complaining employee told Brush that she had been
raped multiple times by her supervisor but did not want her husband
or the police informed.
Sears terminated the harasser and did not report the incident to
the police, citing the investigation's incomplete status and
the complaining employee's own desire not to involve law
enforcement. Brush nonetheless insisted that the company report the
alleged rape. Sears ultimately fired Brush, stating several reasons
for the termination. Sears contended that Brush violated the
company's policy relating to the investigation of sexual
harassment claims by meeting with the complaining employee alone,
by suggesting in the interview that the complaining employee had
been raped instead of asking open-ended questions, and by publicly
criticizing the manner in which Sears handled the
investigation.
Brush sued Sears, alleging retaliation under Title VII. Brush
claimed she was terminated because, through her investigation of
harassment, she raised the rape allegations which would have been
withheld had she not met privately with the complaining
employee.
Brush argued that an investigating manager's role in
reporting a Title VII violation qualifies as "protected
activity" under Title VII. The Eleventh Circuit disagreed,
holding that Brush's disagreement with the way in which Sears
conducted its internal investigation into the complaining
employee's allegations did not constitute protected activity
since there was no evidence that Sears' practice was unlawful
under Title VII. The court pointed out that Brush was neither the
aggrieved nor the accused party in the underlying allegations and
thus had no "personal complaint." In a footnote, the
court noted that it did not foreclose the ability of one employee
to "oppose" discrimination on another employee's
behalf; in this case, however, the court saw no direct interest by
Brush, the third party, in the underlying discrimination. It held
that Brush's actions fell under what has become known as the
"manager rule." Under the "manager rule," a
management employee who, while performing her normal job duties,
disagrees with the employer's actions does not engage in
protected activity under Title VII.
It is understandable why the investigating managers decided that
Brush, a female, should meet alone with the complaining employee
after the initial interview, with a male manager present, resulted
in a less-than-forthcoming response from the claimant. One can also
empathize with Brush's desire to see the police brought into a
case involving allegations of rape. However, Brush knowingly
violated company policy when she interviewed the employee alone;
moreover, she publicly criticized the employer's decision not
to report the rape claims to the authorities. One can also
understand Brush's perception of her termination as a
retaliatory act. However, courts have held that employers have a
right to expect loyalty from their employees. Disagreement with
internal procedures is not "protected activity" that is
done to oppose discrimination. This Court's decision makes
clear that the investigator's primary role is to investigate
the allegations, following company policy to the letter, in order
to reach an appropriate decision and take the proper corrective
action.
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