Supreme Court Won’t Hear Retaliation Case Against Sears

January 23, 2013

The U.S. Supreme Court on Tuesday refused to consider whether Sears Holdings Corp. improperly fired a former supervisor who objected to how the retailer handled a sexual harassment probe she helped conduct.

Without comment, the court declined to take up an appeal by Janet Brush, who had worked on and off for Sears for 15 years, most recently as a “loss prevention district coach” for the Hoffman Estates, Illinois-based retailer’s Kmart unit.

Brush claimed she was let go in November 2007 after Sears rejected her urging that Florida police be told that a male store supervisor might have on three occasions raped a female assistant. She claimed that the firing violated Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex or national origin.

But the 11th U.S. Circuit Court of Appeals in Miami last March disagreed. It said this was because management workers who in the course of their jobs oppose their employers’ actions do not engage in “protected activity” under Title VII.

According to the 11th Circuit, Brush mainly objected to Sears’ failure to alert police to the alleged rapes – the victim had also asked that police not be notified – and failed to show that Sears broke the law in not notifying law enforcement.

The legal standard adopted by the 11th Circuit is known as the “manager rule.” Brush’s counsel said federal appeals courts are divided over whether to accept it, and that some have held that Title VII anti-retaliation protections offer the same protection to managers, supervisors and personnel officials as to other workers.

Erik Scharf, a lawyer for Brush, did not immediately respond to a request for comment.

The case is Brush v. Sears Holdings Corp, U.S. Supreme Court, No. 12-268.

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