Workplace Retaliation and the Intersection of Protected Conduct and Job Performance

Authors

Chris M. Schmidt, University of South Dakota Knudson School of Law

Keywords

equal employment opportunities, EEO, workplace discrimination, protected conduct, Manager Rule, Performance Test

Abstract

A host of statutory schemes seek to ensure equal employment opportunities in the United States by eradicating workplace discrimination (“EEO laws”). Consider two foundational pillars necessary for these EEO laws to strike the desired balance between individual rights and workplace efficiency. First, employees require robust protection from retaliation if they engage in protected conduct—for example, by reporting perceived discrimination. Second, employers can—and ideally, should—make employment decisions based on how an employee performs the job.

The interests in robust protection and performance-based decision-making serve the purposes of our EEO laws and are well-established. Rarely do they conflict (to the contrary, they oftentimes complement one another). Tension arises when the putative protected conduct comes from an employee whose job duties explicitly include tasks like identifying, reporting, and remedying concerns about the company’s legal compliance (“EEO employee”).

Courts have struggled with how to handle situations like this. To date, the response has been to either accept or reject the “Manager Rule.” The Manager Rule provides that an employee who voices concern about conduct perceived to be unlawful as part of the employee’s job duties does not engage in protected conduct (and thus cannot maintain a retaliation claim), unless the employee “steps outside” of what the job normally entails in reporting the concern.

Existing scholarship has focused largely on statutory purpose and public policy. This Article seeks to fill a void by proposing a new analytical approach: the “Performance Test.” Part II outlines retaliation claims, generally, by examining the ubiquitous burden- shifting framework for EEO claims, the relevant statutory Part III explores judicial treatment of retaliation claims when putative protected conduct and job performance intersect, with an assessment of the faulty analysis employed by both pro- and anti-Manager Rule jurisdictions. Part IV then details the proposed Performance Test as a

Recommended Citation

Chris M. Schmidt, Workplace Retaliation and the Intersection of Protected Conduct and Job Performance, 78 Ark. L. Rev. (2025).

Available at: https://scholarworks.uark.edu/alr/vol78/iss3/4