A court-made rule that limits retaliation protections for managers and human resources personnel is encountering judicial skepticism over whether it’s supported by federal law and US Supreme Court precedent.

The US Court of Appeals for the Seventh Circuit was the latest to question the validity of the “manager’s rule,” which restricts anti-reprisal rights under Title VII of the 1964 Civil Rights Act for HR and managerial workers who oppose discriminatory workplace conduct as part of their official responsibilities.

It requires those staffers to step outside their job duties — such as threatening to sue over a workplace issue or advocating on behalf of an employee — for their actions to constitute protected activity and establish a viable retaliation claim.

The Seventh Circuit stopped short of rejecting or adopting this rule in a fired HR worker’s lawsuit suit against Wisconsin Aluminum Foundry. But anti-discrimination law scholars and attorneys say the court’s doubts over the standard builds on the Supreme Court’s growing skepticism toward judge-made doctrines lacking clear statutory support.

“From a textual perspective, this rule’s days seem to be numbered,” said Amy Epstein Gluck, a partner at Pierson Ferdinand LLP.

The Seventh Circuit suggests that “if the Supreme Court were forced to decide, it’s going to look at Title VII’s language and say there is no carve-out or heightened bar that HR managers, personnel directors, or in-house lawyers must clear in order to state...

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