Managers of Internal Sexual Harassment Investigations Should Play by the “Manager Rules”

BABC Labor & Employment Alert



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.