Employees who engage in so-called protected activity can’t be punished for doing so. Typically, protected activity involves going to the HR office or a supervisor and reporting harassment, discrimination or other perceived illegal treatment. For example, an employee who discovers a racial slur on the bathroom wall may report that to HR and that’s protected activity. But what if the employee, instead of going through channels, responds directly to the co-worker making a comment or caught writing graffiti? That’s not protected activity.
Recent case: Roman, who is of Russian national origins, was disciplined over a shouting match he had with a co-worker. The co-worker allegedly called Roman a “Russian piece of s__t” and Roman allegedly retorted that the co-worker was a “f_____g racist.” Both were then disciplined. Roman sued, alleging the discipline was retaliation for protected activity and that his act of shouting back at the co-worker was protected activity.
The court nixed that argument and tossed out the case. It said that responding to the provocation wasn’t protected activity and the employer could reasonably punish both employees for their disruptive behavior. (Rozenfeld v. MTA Bus Company, No. 13-CIV-4847, SD NY, 2015)
Final note: This is a practical decision that acknowledges employers should be able to demand basic civility in the workplace. Be sure that you instruct employees on how to respond to name-calling or other offensive behavior. Remind them to step away and contract a supervisor or HR rather than risking an escalation of the situation.
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