Disloyalty or Retaliation? Federal Appeals Court to Reconsider Whether Employer Can Fire Manager for Allegedly Encouraging Discrimination Lawsuits Against the Company
Federal law not only prohibits discrimination on the basis of certain protected characteristics, such as race or sex. It also forbids employers from engaging in acts of “retaliation” in response to allegations of discrimination. In other words, you cannot fire or demote an employee just because they filed a discrimination complaint against you with the U.S. Equal Employment Opportunity Commission (EEOC). This is considered a “protective activity” the employer may not interfere with, even if it contests the underlying discrimination charge.
Kia Claims Ex-HR Manager Actively “Recruited” Employees to File Lawsuits
But do laws against retaliation prevent an employer from taking action against a senior manager whom it believes is actively trying to get the company sued for discrimination? The U.S. 11th Circuit Court of Appeals recently confronted this question. And following a split decision from a three-judge panel, the full appeals court recently agreed to hear the case again. Although this particular lawsuit comes from Georgia, the 11th Circuit’s territory includes Florida, meaning the final resolution of this case will also affect employers in this state.
Here is some background on the case, Gogel v. Kia Motors Mfg. of Georgia, Inc., No. 16-16850 (11th Cir. Sept. 24, 2018) The plaintiff worked as a “team relations manager” for a Kia manufacturing plant in Georgia. The team relations manager is part of Kia’s human resources department. In that role, the plaintiff was responsible for “developing policies and standards concerning employee behavior.” This included conducting internal investigations into alleged acts of illegal workplace discrimination and harassment.
In 2008, the plaintiff received a complaint from an employee, who alleged her supervisor was engaged in an “inappropriate relationship” with the company’s president. The plaintiff said she was told she “could not investigate” this complaint–and in fact was instructed to initiate a separate investigation into the employee who made the allegations. Later, the plaintiff said she was denied a promotion, which she believed to be the product of gender and national origin discrimination, as well as her refusal to carry out the retaliatory investigation.
The plaintiff decided to file her own charge against Kia with the EEOC in 2010. Shortly thereafter, the plaintiff met with the employee who filed the original complaint. The plaintiff gave the employee the name of the attorney she hired to represent her in the EEOC charge. The employee later filed her own charge, represented by that same attorney. Kia management concluded from this the plaintiff had “recruited” the employee to file her EEOC charge, and on that basis fired the plaintiff.
In a September 2018 decision, a two-judge majority of the 11th Circuit concluded Kia’s actions could be considered illegal retaliation under federal law. The third judge dissented, arguing Kia “understandably decided that they could no longer trust [the plaintiff] to perform the duties for which she was being paid, and they feared future and continued treachery on her part as a senior manager in a highly significant and sensitive position.”
Eleven-Judge Panel to Review Case
On June 17, 2019, the full 11th Circuit voted to vacate the majority’s earlier decision and rehear the case en banc. This means an 11-judge panel will reconsider both sides’ arguments and issue a new ruling. The outcome could have a significant impact on the ability of Florida employers to discipline senior managers who are perceived as “disloyal” by encouraging or facilitating discrimination lawsuits against the company.
If you have any questions about how this case could affect your rights as an employer or employee, contact a qualified Florida employment law attorney today.