In the latest Weekly Wright Report:

• Another Anti-Retaliation Lesson For Employers

Another Anti-Retaliation Lesson for Employers

by Paul Evelius

While employed as a human resources manager for Georgia Pacific, Marie Patterson provided deposition testimony in a pregnancy discrimination lawsuit that several individuals (not including her) had brought against her former employer. Three weeks later, two senior Georgia Pacific managers fired her.

Such timing was too ugly for Patterson, who then sued Georgia Pacific, alleging that her firing violated Title VII’s anti-retaliation provision. That provision contains an opposition clause and a participation clause, which, respectively, bar employers from retaliating against an employee for either opposing a practice that is unlawful under Title VII or participating in a Title VII proceeding. In Patterson’s view, Georgia Pacific’s motivation for firing her was her deposition testimony in the case against her former employer. “Unlost” on her was the fact that, on the day after her deposition, one of the managers who ultimately fired her had, upon asking if she had testified against her former employer and hearing her affirmative reply, stated that this “made things clear” to him.

To sidestep liability, Georgia Pacific invoked two primary defense theories. The first was the somewhat obscure “manager exception.” Under this theory, according to Georgia Pacfic, an employer cannot be held liable for retaliating against a human resources manager for opposing an unlawful practice if that manager expressed such opposition in connection with her job duties.  From the company’s viewpoint, Patterson’s deposition testimony in the case against her former employer related to her duties as its human resources manager and the manager exception thus applied with full force.

Georgia Pacific’s second defense was a “current employer” theory. Under this notion, Title VII’s anti-retaliation provision applies only to an employee’s opposition to unlawful discrimination committed by her current employer. Put another way, Georgia Pacific argued that Title VII’s anti-retaliation provision did not prohibit it from retaliating against Patterson for her opposition to unlawful discrimination committed by her former employer.

A federal district court bought both defenses. Granting summary judgment to Georgia Pacific, it ruled, in effect, that even if Patterson’s firing was motivated by her deposition testimony against her prior employer, the manager exception and the current employer theory shielded Georgia Pacific from retaliation liability.

Such reasoning was, again, too ugly for Patterson, who appealed. And found her beauty. Last week, a federal appeals court reversed the district’s court decision. It held, first, that the manager exception does not apply to Title VII’s anti-retaliation provision; rather, it is a creature birthed from language peculiar to the Fair Labor Standard Act and can’t invade Title VII jurisprudence.

In addition, the appeals court held that Title VII’s anti-retaliation provision sweeps broadly enough to outlaw reprisals triggered even by an employee’s opposition to a former employer’s unlawful discrimination.

So now, Patterson will try her case to a jury. And sure, Georgia Pacific will be entitled to assert other defenses, such as Patterson’s alleged poor performance and absenteeism. But it may learn the hard way what all employers should take away from cases like this—that anti-stupid-statement training for supervisors can never end and that, just as coverup can be as destructive as any underlying crime, retaliation rivals discrimination in its cost consequences.

If you have any questions, email me at pevelius@wcslaw.com or call me at 410-659-1302.