Yes, It's Illegal To Retaliate If HR Managers Or Management Oppose Discrimination

Management-side lawyers are always trying to come up with new ways to make discrimination and retaliation legal. So it's no surprise that they argued in a recent case that there is a "management exception" to retaliation. The theory was that, if an HR manager or other management opposes discrimination as part of their regular job duties, they aren't covered by anti-retaliation laws.

The 11th Circuit has clearly rejected this argument:

The manager exception would carve out of Title VII protection the actions of management employees who have in the course of their normal job performance opposed an unlawful employment action of an employer. That carveout does not fit within the ordinary meaning of the word "opposed," and it is contrary to how Title VII uses the word. For one thing, the statute does not put any qualification on the word "opposed." It does not say an employee has engaged in protected activity unless her opposition came as part of her duties in the normal course of her employment.

Because it's not explicit in the text, to limit the plain meaning of "opposed," the manager exception would have to be implicit in how a person speaking "in ordinary discourse . . . would naturally use the word" opposed. Crawford, 555 U.S. at 277. But the limitations imposed on the word "opposed" by the manager exception would be neither "ordinary" nor "natural" to someone using that word. A person speaking "in ordinary discourse" would think an HR manager has opposed her employer's unlawful employment practices even if it's part of her job to do so. Opposition is opposition, whether the opposer is drawing a manager's salary or not.

It is too big a stretch to think that Congress silently and implicitly wrote into the opposition clause a significant exclusion of an entire category of employees, HR managers. We "assume that Congress does not generally hide elephants in mouseholes." CSX Transp., Inc. v. Ala. Dep't of Rev., 888 F.3d 1163, 1176 (11th Cir. 2018) (quotation marks omitted). That assumption is especially true here where the elephant would have to trample the ordinary and plain meaning of the words Congress did choose.

Whew! Thank goodness. Another attempt to make retaliation legal is rejected. If you're an HR person or other management employee who has opposed discrimination, it's illegal for your employer to retaliate against you. If you think illegal retaliation happened to you, contact an employee-side employment lawyer in your state to discuss your rights.