Angry Employees: Revisiting Insubordination in Title VII Cases
Harvard Law and Policy Review, Vol. 10, No. 1, 2016 Forthcoming
65 Pages Posted: 17 Sep 2015 Last revised: 11 Oct 2015
Date Written: September 15, 2015
In too many Title VII cases, employees find themselves thrown out of court because they reacted angrily to reasonable perceptions of employer discrimination. In the race context, supervisors repeatedly call employees the n-word and use other racial epithets, order African American employees to perform work others in the same job classification do not have to do, and impose discipline white employees do not face for the comparable conduct. In the gender context, courts throw out plaintiffs’ cases even where supervisors engage in egregious sexual harassment. Employees who react angrily to such demeaning treatment — by cursing, shouting, refusing an order or leaving the workplace — find themselves fired for “insubordination.” Their acts fall short of threats of violence and are brief in duration, but courts nonetheless uphold employers’ invocation of “insubordination” as a “legitimate, nondiscriminatory reason” for plaintiffs’ discharge. The article argues that courts should more carefully scrutinize the relationship between discrimination-tinged work environments and employees’ angry reactions.
This article makes specific proposals about how Title VII courts should handle insubordination cases that raise discrimination concerns. To gain ideas for this purpose it looks both to Title VII precedent and doctrines the National Labor Relations Board has developed in the exercise of its special expertise in regulating workplace relations. Unlike many Title VII courts, the NLRB and courts reviewing its decisions often grant some leeway to “angry employees” — i.e., employees who have gone some distance past the line of proper decorum (but not too far) in expressing indignation at what they reasonably perceive as violations of their statutorily protected rights. Instead of routinely accepting insubordination as legitimate grounds for an adverse employment action, as Title VII courts often do, the NLRB more carefully scrutinizes the context giving rise to “angry employees.”
This article argues that Title VII courts should do more of that scrutiny too. It proposes doctrinal modifications Title VII courts could implement in the exercise of their interstitial statutory interpretative powers to better serve Title VII’s dual purposes of (1) better enforcing the workplace anti-discrimination mandate and (2) encouraging employers and employees to resolve discrimination disputes in real time in workplaces rather rendering employees so docile that that they must “make a federal case” out of all discrimination disputes.
Keywords: antidiscrimination; Title VII; labor law; NLRA; Atlantic Steel; insubordination; retaliation clause
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