If your job is to help employees, can you be fired for doing just that, when helping an employee means acting against the best interests of your employer? In 2011, an employee who worked for a behavioral health provider was fired for failing to take a pro-employer stance in a case of severe sexual harassment. The employee filed an EEOC suit, alleging retaliation for engaging in protected activity.
In 2008, J. Neil DeMasters counseled a Carilion Behavioral Health employee who had contacted his employee assistance program in regards to a severe case of sexual harassment, which he had physical proof of. The case was dealt with through the employee’s supervisor and HR, and the harasser was terminated. However, the employee continued to be subject to hostility by those who were friends with the harasser. Management failed to deal with the retaliatory behavior, and the employee feared for his safety, as he was made to believe the harasser was going to come after him with a gun. After several interactions with Carilion HR that failed to diffuse the situation, DeMasters told the employee that he felt it was being mishandled.
In 2010, DeMasters was notified that the employee was filing a complaint with the EEOCand pursuing a civil suit for sexual harassment against his employer. At that time, Demasters was questioned about his involvement in the case. A few weeks after the employer settled the civil suit regarding the sexual harassment, DeMasters was called into a meeting with the vice president of HR, his EAP manager, and a corporate attorney. He was questioned about the case, and when he requested to have an attorney, he was threatened with termination.
DeMasters was then questioned about the employee’s complaint and asked his view. He was told that his actions had left the company exposed, and that he should have taken a more pro-employer stance. He was accused of failing to protect his employer and was terminated two days later.
After being fired, DeMasters filed a discrimination charge with the EEOC saying that his firing violated Title VII’s anti-retaliation provision that prohibits retaliation against an employee who opposes any practice made an unlawful employment practice by Title VII, such as sexual harassment. His claim was dismissed under the manager rule, but he appealed.
The 4th Circuit panel ruled that the manager rule didn’t apply here because “the types of managers best able to assist employees with discrimination claims-the personnel who make up EAP, HR, and legal departments-would receive no protection from Title VII if they oppose discrimination targeted at the employees they are duty-bound to protect” and therefore “applying the manager rule in the Title VII context would discourage those very employees from voicing concerns about workplace discrimination and put in motion a downward spiral of Title VII enforcement.” The case was sent back to district court for further proceedings.
If you have been the target of workplace harassment, discrimination or unfair termination, Bouchillon, Crossan & Colburn, L.C. represents clients in federal court and before the EEOC, MSPB and in state and union grievance hearings.