Court Finds Employee’s Discharge For Vulgar Comment Unlawful Due To Failure To Enforce Harassment Policy

The U.S. Court of Appeals for the District of Columbia Circuit recently agreed with the National Labor Relations Board (NLRB) that an employer violated the National Labor Relations Act (NLRA) when it discharged an employee for writing “whore board” on an overtime sign-up sheet. The court found that the employee was engaged in conduct protected by the NLRA because he was protesting a change to overtime procedures.

The employer argued that it discharged the employee for violating its policy against harassment in the workplace – not for protesting the overtime procedures. The employer explained that it had recently incurred a $1 million verdict for maintaining a hostile work environment in relation to comments made by its CEO on a bulletin board that were derogatory toward women. As such, it viewed the employee’s defacement of the overtime sign-up – labeling anyone who signed up for overtime a “whore” – to be a serious violation of its anti-harassment policy, warranting discharge.

The court rejected this argument, finding that the employer regularly tolerated profane, vulgar and even harassing language in the workplace, including the use of the term “whore board.” The court explained that the employer’s “failure to [consistently] enforce its code of conduct or anti-harassment policy dooms its assertion that it would have fired [the employee] for use of the phrase or for an offensive writing” without regard to his protected activity. While the employer can implement new behavioral standards in the workplace, it must be able to prove that such standards are being consistently enforced on a regular basis.

This case is a good example of the difficult burden employers face when defending their discipline and discharge decisions. Administrative agencies, like the NLRB and the EEOC, are very likely to view an employer’s decision to discharge or discipline an employee engaged in some type of protected conduct as unlawful without regard to the employer’s good faith attempts to enforce legitimate workplace policies. Employers cannot always rely on the courts to set things right, as the dissenting judge in this case noted, “I see unfairness in this record, but it is not on the part of the employer.” Instead, employers who want to rely on their workplace conduct policies in defending discharge and discipline decisions need to be vigilant in ensuring that those policies are consistently and regularly enforced.

If you have questions about this case or need assistance with a discipline or discharge decision, please contact a KZA attorney. 

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