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Know the limits of employee free speech—no need to tolerate out-of-line protests

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in Discrimination and Harassment,Employment Law,HR Management,Human Resources

Employees have the right to voice concerns and complaints about perceived workplace discrimination. That’s protected activity under Title VII.

They also have the right to discuss alleged discrimination among themselves and you can’t stop them from doing so. That’s protected concerted activity under the National Labor Relations Act (NLRA).

But employers have rights, too. Employees don’t have the right to communicate their concerns in ways that are disruptive, insubordinate or that otherwise violate reasonable company policies. You can punish employees who don’t play by the rules.

Recent case: Glen Perry, who is black, worked as a civilian police officer at the U.S. Army’s Fort Dix. He had a long and difficult relationship with his supervisor, who was an Asian-American woman. The two did not get along and Perry believed she harbored racist feelings against him and other black officers.

When Perry filed an EEOC complaint, a fellow black officer came to testify. He contradicted some of what Perry claimed in his complaint. Perry was then caught on videotape placing offensive materials, downloaded to his office computer, in the other officer’s locker.

Things went from bad to worse when the supervisor was promoted. That’s when Perry sent a highly inflammatory e-mail to 11 other minority officers. In the e-mail he questioned the boss’s promotion and her qualifications. Then he called for widespread protests against perceived injustices within the department. The e-mail ended with what was essentially a call for insurrection among black officers.

Perry was fired and the Army readily admitted one of the main reasons was the e-mail he had sent.

Perry sued, alleging retaliation for engaging in protected activity.

The 3rd Circuit Court of Appeals agreed that Perry may have engaged in protected activity when he sent the e-mail. But that wasn’t the end of the matter. The Army still had the right to fire him for the way he delivered his message.

The court said, “The inflammatory way in which Perry chose to communicate his objections was inappropriate, designed to undermine the authority of the Director of Public Safety and create disharmony throughout the department.”

In other words, it was fine for Perry to voice his concerns to his superiors. But the way he chose to complain sunk his case. The court said it was clear the Army fired Perry for the way he delivered his message, not for the content of that message. (Perry v. Harvey, No. 08-3339, 3rd Cir., 2009)

Advice: It may be difficult to distinguish between legitimate communication among co-workers about workplace problems and communication that goes over the line. Before you punish or fire an employee for discussing discrimination (or other protected topics) such as unions at work, have an attorney review the case. He or she can tell you whether what you propose doing violates Title VII or the NLRA.

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