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Title VII fails to protect in-house counsel


By Sean McLean

Title VII of the Civil Rights Act of 1964 (Title VII) makes it illegal for employers to discriminate against employees on the basis of race, color, religion, sex, national origin, among other categories.  Title VII also prohibits retaliation against employees who report about wrongdoing under the Act.  In this regard, employers may not fire or take adverse action against an employee based upon an allegation of a Title VII violation.  However, this case demonstrates how Title VII’s protection may not apply equally to all employees across the board.

In-house counsel’s Title VII claim

An attorney/employee who served as in-house counsel for a state agency filed a retaliation claim against the agency under Title VII after her employment was terminated.  The employee claimed she was fired because she raised concerns about the agency’s unlawful discrimination against two employees.  However, the employee agreed that when she expressed her concerns about the unlawful discrimination to her boss, she was acting within the scope of her job as general counsel, assisting the agency in complying with its obligations under the law.  

The employee’s boss, on the other hand, claimed the employee was fired because of poor performance.  He stated the employee simply did not do much work and would spend exorbitant amounts of time (up to five hours a day) dealing with personal matters.  The boss provided several examples of projects which the employee failed to complete until months after their deadline.  He insisted that the employee’s poor performance, and not her concerns about alleged unlawful discrimination, was the reason for her termination.

Limited scope of Title VII
At trial, the court ultimately determined the employee was ineligible to claim protection for retaliation claim under Title VII.  The employee had shown she only performed the duties of her position as legal counsel by advising the agency of potential personnel issues, which did not amount to opposition to discrimination, as protected under Title VII. 

The court held that in order for an in-house attorney to engage in protected opposition she must do more than provide legal advice to her employer on how best to resolve a claim of discrimination asserted by another employee.  Instead, the attorney must step outside of her role of representing the agency and (i) file, or threaten to file, an action adverse to the employer, (ii) actively assisting other employees in asserting Title VII rights, or (iii) engage in activities that reasonably could be perceived as directed toward the assertion of rights protected by Title VII.   Since the attorney’s/employee’s actions did not extend beyond the scope of her role as in-house counsel, her claim was ineligible for protection under Title VII.

As a result of this decision, in-house counsel in Colorado, Kansas, Oklahoma, New Mexico, Utah and Wyoming will have a higher standard of proof and pleading to claim retaliation if reporting alleged discrimination.  Unlike most employees who simply have to oppose alleged unlawful employment practices by “antagonizing”, “contending against”, “confronting”, “resisting” or “withstanding”, now certain in-house counsel must “actively assert” resistance outside of her employment roll for Title VII’s protection to kick-in.

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