Title VII generally protects employees who oppose employment practices made unlawful by Title VII, such as sexual harassment.  But what happens when a manager disagrees with the way in which her employer handles an internal investigation into an allegation of sexual harassment?  Is the manager engaging in protected activity by voicing her disagreement?  That was the issue addressed by the Eleventh Circuit Court of Appeals in Brush v. Sears Holdings Corp., Case No. 11-10657 (11th Cir., March 26, 2012) (unpublished). 

Brush was a loss prevention manager who was charged with investigating allegations of sexual harassment made by a store employee.  Brush met with the employee alone.  The employee alleged that her boss had raped her.  But the employee requested that neither her husband nor the police be informed of the rape.  Brush told her own boss of the employee’s allegations and insisted that the company needed to contact the police.  The company declined, citing the incomplete status of the investigation and the employee’s own desire not to involve the police.

The company subsequently terminated Brush for violating the company’s sexual harassment policy in meeting with the employee alone, in suggesting to the employee that she had been raped without asking an open-ended question to see what the employee said, and in failing to properly investigate the claim by obtaining video evidence. 

Brush sued the company, alleging retaliation in violation of Title VII.  Brush asserted that her opposition to the company’s handling of the employee’s allegations constituted protected activity.  The district court disagreed and dismissed Brush’s complaint. 

On appeal, the Eleventh Circuit affirmed the lower court’s ruling.  “Brush’s disagreement with the way in which Sears conducted its internal investigation into [the employee’s] allegations does not constitute protected activity,” the court wrote.  “Since there is no evidence of Brush’s opposition to any unlawful practice [of Sears], it follows that Brush can support no claim under Title VII.”  While Brush opposed Sears’ failure to call the police, “[s]he has cited no state or federal law that would have mandated Sears take some action other that what it took.”

The court also rejected Brush’s argument that a manager’s role in reporting a Title VII violation always qualifies as a protected activity.  In so doing, the court adopted the “manager rule” that has been adopted by other circuits.  Under this rule, a management employee who, in the course of her normal job performance, disagrees with or opposes the actions of an employer is not engaging in protected activity.   

For employers in the Eleventh Circuit, the Brush decision creates a valuable defense to claims of retaliation by manager-level employees.