Methinks thou doth protest too much! FYI, only ‘reasonable’ opposition is protected

It seems that every day the news is full of stories about employees (whether they are NFL players or Hollywood starlets) protesting unfair treatment. Usually, when an employee complains about discrimination, harassment, equal pay, or other work-related topics, he or she is protected from discipline or termination because the conduct is considered “protected activity” under Title VII of the Civil Rights Act of 1964 and a myriad of other federal and state employment laws.  Hand holding protest sign

Under limited circumstances, however, an employee’s protests may cross the line from protected opposition to unprotected disruption. Specifically, an employee who engages in loud, unreasonable, and disruptive protests at work, even though the action is borne out of an attempt to protest alleged unfair treatment or discrimination, isn’t protected by Title VII. Rather, only reasonable opposition and reasonable protests are considered protected activity.

Although Title VII doesn’t protect unreasonable opposition to alleged discrimination, in the real word, disciplining or firing an employee who complains of discrimination is extremely risky territory and should only be considered when the employee’s conduct is extreme.  When weighing whether to administer any such discipline, it is imperative to focus on the FORM of the employee’s protest, not its CONTENT. In addition, keep in mind that disloyalty toward the organization or its superiors, standing alone, generally isn’t a sufficient reason to discipline or discharge an employee who engages in protected activity. You must be able to show more.

For example, courts have found the following to be legitimate reasons to fire an employee who engages in speech or conduct that may otherwise be protected:

  • Hostile, disruptive, and/or noisy conduct during work hours that disrupts the work environment
  • Conduct that disrupts other employees’ ability to do their jobs
  • Conduct that has a negative impact on employee morale
  • Deliberate attempts to undermine a supervisor’s ability to perform his or her job
  • Conduct that results in a loss of mutual trust and confidence, which are essential to the proper functioning of the workplace
  • Comments that interfere with the progress of meetings and disrupt discussions
  • Circulating rumors and gossip
  • Continually arguing with subordinates, colleagues, and/or supervisors
  • Conduct that renders the employee ineffective in the performance of his or her duties
  • Making militant demands that exceed tolerable limits of appropriate conduct
  • Conduct that has earned the employee a reputation as a disruptive agitator who antagonizes supervisors, colleagues, and employees and impairs the organization or department
  • Conduct that is highly offensive or threatening to others

When it comes to having proof of unreasonable protests, it’s a case of the more, the merrier. In other words, the more of these facts you can demonstrate are present in your particular situation, the more likely you will be able to defend against a retaliation claim.

Bottom line for employers

So, the next time you’re faced with a disruptive agitator whose protests of alleged unfair treatment are throwing your workplace into a tailspin, make sure you closely scrutinize your reasons for imposing discipline, document the specific reasons why the behavior at issue was disruptive and how it interfered with other employees’ morale and work environment, and obtain written statements from the employees who were negatively affected by the protest’s unreasonable nature. Lastly, before you even think about disciplining or firing an employee for complaining about discrimination, take a deep breath and call your employment law counsel!