Employees May Be Held Accountable for the Manner of Their Complaint

Although the fact of an employee’s complaint of discrimination may be protected under Title VII, the manner of the complaint may not be, as the U.S. Court of Appeals for the First Circuit recently held.

In Jenkins v. Housing Court Dept., the employee complained of discrimination and other issues by sending multiple long emails to his superiors, court administrators and others. He was placed on administrative leave after sending at least 10 emails to his co-workers in the course of a month. When he returned to work, he was told his complaints would be investigated, but also reminded that he should communicate in a professional manner and follow proper channels for making complaints – through his supervisor, his supervisor’s supervisor or human resources. Nonetheless, he continued to send repeated letters and emails, airing the same concerns, to judges, court administrators and the entire staff. He was issued a written warning for his conduct, even as the department continued to investigate the substance of his complaints. He persisted in sending multiple redundant emails, despite repeated requests for him to stop while the investigation was pending. And he was finally terminated for his insubordination due to his repeated refusal to comply with reasonable directives from his employer. He then sued, alleging, among other things, retaliation for his complaints of discrimination, in violation of Title VII.

The First Circuit, however, rejected his claim of retaliation. While it noted that an employer cannot disguise retaliation as “merely discipline” for the manner in which protected conduct is undertaken, the First Circuit further asserted that “at the same time, an individual is not immune from being disciplined on the basis of the manner in which he makes a complaint of workplace discrimination.” In this case, the record “indisputably” showed that he was terminated on the basis of the insubordinate manner in which he repeatedly made his complaints.

It is worth noting the First Circuit cautioned that “an employer’s inaction in the face of serious allegations of race discrimination in the workplace may invite the employee to persist in trying to have them addressed.” In this case, however, the First Circuit noted that the employer repeatedly emphasized that the employee was free to make complaints – following the appropriate procedures – and also actively investigated them.

So there are several lessons for employers here. Employers should set up effective procedures by which employees may raise concerns, including about harassment and discrimination. These procedures should be clearly communicated to employees. Employees can then be directed to follow those procedures, and can be issued progressive discipline if they do not do so and their conduct causes a disruption. But at all times, employers should reiterate the employee’s right to make complaints (appropriately utilizing the procedure) and should promptly and thoroughly investigate the substance of the complaints.