This month the U.S. Court of Appeals for the District of Columbia Circuit upheld the National Labor Relations Board’s (NLRB) decision that an employer wrongfully terminated an employee who vandalized the company’s overtime sign-up sheets with the words “whore board.” According to the employer, the employee’s graffiti was derogatory towards women and violated their anti-discrimination policy. However, the NLRB had a different take. According to them, the use of the phrase “whore board” was a protest against the company’s overtime policies and was protected under the National Labor Relations Act (NLRA). According to Section 7 of the NLRA, employees are free to engage in “protected concerted activity” (i.e., when two or more employees work together to improve their working conditions) without fear of retaliation. The D.C. Circuit agreed and held that the employee’s conduct was protected under the NLRA because it was part of a “‘continuing course of protected activity’ in protest of the overtime procedures” and that he was terminated in response to these protected activities.
Employers might be puzzled by this holding. Why couldn’t the employer argue that the termination was motivated by the employee’s use of derogatory language or his vandalism, rather than his efforts to improve his working conditions? Ordinarily, an employer could make this argument. However, as the D.C. Circuit noted in its decision, the employer had previously “tolerated extensive profanity, vulgarity, and graffiti in the workplace.” The employer’s “lack of enforcement of its own anti-harassment policies and code of conduct” foreclosed the employer from arguing that the employee was terminated for his use of foul language, rather than his engagement in protected activity.
What should employers take away from this case? First, anti-discrimination policies and codes of conduct should be consistently enforced in order to avoid the appearance of discrimination or retaliation. Second, just because an employee exhibits aggressive, profane, or seemingly insubordinate behavior, this does not automatically give an employer the right to fire them. Employers should consult with an attorney to ensure that their problematic employee hasn’t engaged in any kind of legally protected activities.