Human Resource Manager Fired For Advocacy Of Women And Minority Applicants
 
November 14, 2000
 

In a case of first impression, the Sixth Circuit Court of Appeals recently held that the former affirmative action director for the University of Cincinnati has standing to sue for retaliation, as well as race and national origin discrimination, based on his termination allegedly for his advocacy on behalf of minority and women applicants who were discriminated against in the hiring process. Johnson v. University of Cincinnati (June 1, 2000).

The university hired John B. Johnson in 1993 as it vice-president of human resources and human relations with primary responsibility for administering the university’s affirmative action program. The program, which had been established pursuant to a conciliation agreement with the Office of Federal Contract and Compliance and Programs (OFCCP), authorized the affirmative action director to review all hiring decisions to determine whether minorities were underutilized in a job category and whether sufficient numbers of such minority applicants were considered. The program, however, granted the university president the discretion to waive the review and oversight process. When Johnson was hired, the university president had already exercised his discretion to waive the review process in about 300 cases.

After a year on the job, Johnson began sending letters to the university president and other officials complaining about the high number of waivers and warning that the university’s lack of commitment to the affirmative action program could result in further OFCCP scrutiny. Johnson’s complaints continued over the next two years. In December 1995, he filed a discrimination and retaliation charge with the EEOC. A month later, the university president sent Johnson a negative evaluation of his performance, which contrasted sharply with two earlier evaluations praising Johnson for his leadership and vision. Johnson disputed the negative evaluation, but the university president fired him the day after receiving Johnson’s response.

In his lawsuit, Johnson alleged that his termination was the result of discrimination and retaliation for his advocacy on behalf of women and minorities and for his filing an EEOC charge, as well as other related claims. The district court granted summary judgment in favor of the university on all claims. The Sixth Circuit reversed and remanded Johnson’s claims for trial.

In considering Johnson’s standing to sue in light of his failure to allege any discrimination against himself as a member of a protected group, the court held that the race of Johnson is irrelevant because the race of the minorities for which he was advocating would be “imputed” to him. The court flatly rejected arguments that the university was immunized from liability because Johnson was a high-ranking human resources official whose primary duty was to advocate on behalf of minorities. The court reasoned that such immunity would encourage employers to retaliate against the person best able to oppose the employer’s discriminatory practices. In remanding the case, the court noted that Title VII’s opposition clause must be construed broadly to cover Johnson’s opposition to what he, in good faith, viewed as discriminatory hiring practices whether the challenged practice is in fact unlawful. The court similarly recognized that filing the EEOC charge was protected under the “exceptionally broad” participation clause as long as Johnson could have reasonably believed that he had a viable discrimination claim, even if part of his motivation for filing the charge was to protect his job.

The clear message of this decision is that courts will liberally construe Title VII’s anti-retaliation provision to protect all employees opposing what they reasonably believe to be discriminatory conduct, whether the employee is a member of a protected group and regardless of the employee’s rank, title, job duties or the actual merits of the claims.

For more information please contact Theodore Small at 1-888-688-8500 or at tsmall@hklaw.com.