To Be Disrespectful Or Not To Be – That Is The Question

We’ve spent a lot of time talking about how the NLRB continues to have problems with policies and practices that prohibit employees from engaging in vague, undefined behavior that could constitute “protected concerted activity” through social media.   One example is when a company prohibits an employee from (or terminates the employee because of) engaging in acts that are deemed “disrespectful”.   Much like “disparaging” or “inappropriate”.  But a federal court decision issued this past Thursday demonstrates that the NLRB’s position is only one, and certainly not the only, consideration.

In Zayas v. Rockford Memorial Hospital, an ultrasound technician alleged that her hospital employer discriminated against her under Title VII of the Civil Rights Act and the Age Discrimination in Employment Act when it fired her in April 2011.  The hospital argued that it terminated her because she sent her direct supervisor “a series of disrespectful emails, despite her supervisor’s warnings.”  After informal and then formal warnings didn’t stop the offending e-mails, she was fired.  The e-mails were deemed by management to be “negative, unprofessional and disrespectful towards her managers and peers.”  The employee, on the other hand, claimed that the e-mail rationale was a pretext for discriminatory animus based on her national origin and age.

The 7th Circuit Court of Appeals agreed that the initial federal court properly granted summary judgment to the hospital and dismissed the case before it ever went to trial.  Notably, the court found that it was not its job to decide whether the employee’s e-mails were truly egregious or disrespectful, so long as there was evidence that the hospital truly believed they were.  In the end, the court ruled:  “Despite Zaya’s many claims, there is insufficient evidence to find that her termination was based on anything but the many disrespectful emails she sent to [her supervisor].”

Employer Take Away:   What should you as an employer take away from this development?

There are two points worth highlighting:

1.         Your company can still defend claims of discrimination if you can show a well-documented, reasonable business reason for the employment decision at issue.  Score one for those still longing for the days when the law allowed the termination of an at-will employee because the company felt the employee was being disrespectful to a supervisor.

2.         There still are a myriad of laws out there that potentially govern employer-employee relations.  So why, you might ask, was this employer allowed to act based on a vague, subjective notion of what is “disrespectful” when so much blog space has been devoted to eliminating a word like “disrespectful” from workplace policies to comport with NLRB guidance?  The decision in the Zayas case doesn’t mention the NLRB or “protected concerted activity”, but my answer to that question is that (a) this case was brought under Title VII, and was not before the NLRB, and (b) this employee’s e-mail activity appears to have been neither “concerted” nor “protected” under the National Labor Relations Act.   Title VII and the National Labor Relations Act are two different statutory schemes, and both (among others) should be considered when your company decides to make some employment-related decision.

About The Author

Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.

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About Social Media Employment Law Blog
Social Media Employment Law Blog is devoted to the interplay between social media and employment law, an extremely topical and significant area of law for employers in this new technology era. Published and edited by Michael Schmidt, Vice Chair of the Labor & Employment Department, Mike concentrates in representing management in all facets of employment law and has been frequently quoted on employment law topics, and is regularly interviewed by trade publications and national journals for his opinions on legal trends.
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