Yesterday, the 11th Circuit Court of Appeals heard arguments on just this issue.
The plaintiff, Andrea Gogel, worked for Kia Motor Mfg. in Georgia as an HR manager. In fact, she was a team leader assigned to handle complaints of discrimination and other workplace violations. After coming to believe that she too was a victim of unlawful conduct by the company, she filed a charge with EEOC alleging gender and national origin discrimination. Two other employees filed similar charges after they and Gogel on their behalf received no satisfactory resolution to their complaints.
When the company noticed that all three employees were represented by the same lawyer, it discovered that Gogel had provided the lawyer’s name to the other two employees (although she claimed that she had not actually hired that lawyer yet herself), it did what most employers would do, it discharged her. She then amended her charge to include a claim for retaliation, claiming that she had the right to pursue her own claim of discrimination as well as the right to address workplace discrimination in general.
The case squarely tests the competing rights of human resources officials and the companies they represent. As one executive of the Kia explained it, Gogel was “paid to prevent lawsuits” not encourage them. In other words, her job included the duty of loyalty to the company, so by encouraging litigation, she was not performing a core function of her job.
Gogel argued, on the other hand, that she did not leave her Title VII rights at the door by accepting the position in HR; her job duties could never supersede the law against discrimination and retaliation.
Generally, these types of cases require the application of a balancing test based on the particular facts of whether the HR employee’s actions were reasonable under the circumstances or was it more reasonable to expect loyalty to the employer and following company procedure. A key component of that test is whether the HR employee had exhausted internal remedies. In this case, it appears that she had.
Employers should be aware that they do have the right to expect and demand “loyalty” from employees and the assurance that employees will act in the employer’s best interest, which encouraging litigation is generally not. On the other hand, prohibiting all opposition to workplace practices by HR likely runs afoul of Title VII. Before an employer disciplines an HR employee for encouraging staff to seek outside assistance with their workplace complaints, it’s best to ensure that’s its own internal procedures to resolve these complaints are effective.
We will keep you posted on the 11th Circuit’s ruling.
