The full U.S. Court of Appeals for the Eleventh Circuit will hear argument Oct. 22 on what role, if any, a worker’s job duties play in determining whether she engaged in protected opposition to workplace discrimination.
A decision by the en banc court could affect hundreds of thousands of workers in the growing legions of human resources professionals and para-professionals, according to the Georgia and Florida chapters of the National Employment Lawyers Association.
Limiting in any way an HR employee’s ability to call out employment bias would be “equivalent to an earthquake in the national workforce,” the job rights advocates said in a brief supporting Andrea Gogel in her case against Kia Motors Manufacturing Georgia Inc. HR professionals play a key role in the enforcement of workplace bias laws that will be lost if they’re denied full protection against job retaliation, the NELA chapters said.
Gogel, a former Kia team relations manager, said in her briefs that she was terminated illegally based on the automaker’s mistaken belief that she assisted a Kia general affairs specialist in filing a discrimination charge with the Equal Employment Opportunity Commission.
But Kia countered that Gogel was lawfully fired for soliciting the employee’s action by referring her to Gogel’s personal attorney. Gogel did that to bolster her own, earlier-filed EEOC charge, and the solicitation occurred after she signed an agreement promising she wouldn’t misuse her high-ranking “position of trust” in that way, according to Kia’s brief.
Employers can’t retain HR professionals they no longer trust to further their efforts to voluntarily comply with job discrimination laws, the U.S. Chamber of Commerce urged in a brief backing Kia. The duties of an HR employee, especially a top-level one like Gogel, typically include helping to steer workers away from taking bias gripes to outside authorities. That’s consistent with the mission of Title VII of the 1964 Civil Rights Act, which views court intervention in a workplace dispute as a last resort, the Chamber said.
A ruling by the Eleventh Circuit prohibiting employers to weigh an HR employee’s fealty to those key job duties will limit the ability of the Chamber’s more than three million member companies and professional organizations to initially fight workplace discrimination in-house, as envisioned by Congress, the world’s largest business federation said.
EEOC Taking Conflicting Views?
The EEOC also filed an amicus brief backing Gogel. It said Title VII’s anti-retaliation provision applies to “any” employee. Any means “all,” and Gogel’s team relations position and duties aren’t part of the retaliation calculus, the agency said.
HR personnel and other employees with managerial responsibility must be able to voice their concerns about workplace bias, the agency says. Discouraging them from doing so by watering down their protections against retaliation will undermine Title VII’s broad scope and remedial purpose, the EEOC said.
But that position is inconsistent with the EEOC’s published guidance, which recommends using the “balancing” test the Eleventh Circuit has looked to in the past to analyze Title VII retaliation claims, Kia said. That test weighs an employee’s right to oppose discrimination against an employer’s legitimate demands for employee loyalty and a productive work environment, the company said.
The circuit has repeatedly held that HR employees like Gogel who neglect their job duties aren’t engaging in Title VII-protected activity, the automaker said. The EEOC and the First, Fourth, Fifth, Sixth, Seventh, Ninth, and D.C. circuits have all indicated that an HR employee’s solicitation of lawsuits against her employer amounts to a neglect of duty, Kia said.
The court should create a “self-help” exception to the balancing test and disregard Gogel’s duties as Kia’s top team relations employee in Georgia, the Association of Global Automakers Inc. said in a brief also backing Kia. The organization represents the U.S. operations of international automakers and related suppliers and trade groups.
But What Was Gogel’s Role?
Gogel said she backs the “aspirational policy” of voluntary Title VII compliance touted by Kia and its supporters. But an employee, even a teams relations manager, must be permitted to act on internal job bias complaints when an employer fails to and attempts to sweep things “under the rug,” she said in her reply brief.
An employer isn’t the “sole gatekeeper” of information provided to the EEOC, Gogel said.
She admits she provided the general affairs specialist with the name of a lawyer. But she hadn’t personally hired the lawyer herself at that point, Gogel said. That came later, after Gogel filed her own EEOC charge, she said.
The automaker and its amici also miscast and exaggerate her job duties, Gogel said. Her team relations manager position didn’t require her to try to prevent employees from taking bias complaints outside the company, she said. If they had, that would violate Title VII, she said.
Her job was to prevent union organizing, Gogel said. She only conducted internal investigations of discrimination complaints when directed to by Kia’s legal counsel, she said. EEOC charges were investigated by the legal department, not team relations, she said.
A jury could find Kia fired her for her own EEOC charge, not just for her misperceived role in the general affairs specialist’s charge filing, which was done without her knowledge, Gogel said. Threats to her job and a pair of suspensions before she was terminated also could be seen as adverse employment actions supporting her retaliation claim, she said.
But Gogel was the “boss” of team relations, the department that conducted EEOC investigations, Kia said. Gogel’s own testimony would only allow a jury to reject her retaliation claim, it said. There’s also other evidence, including her supervisor’s supported conclusion that Gogel had “gone rogue,” the company said. The agreement she was asked to sign and was ultimately fired for violating was just a reminder of her job duties, not retaliation, it said.
The case is Gogel v. Kia Motors Mfg. Ga., Inc., 11th Cir., No. 16-16850, oral argument on rehearing en banc 10/22/19.