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10 Harv. L. & Pol'y Rev. 185 (2016)
Angry Employees: Revisiting Insubordination in Title VII Cases

handle is hein.journals/harlpolrv10 and id is 191 raw text is: Angry Employees: Revisiting Insubordination in Title VII Cases Susan D. Carle* INTRODUCTION To read federal case law decided under Title VII of the Civil Rights Act of 19641-the provision that prohibits employment discrimination on the ba- sis of race, sex, and other characteristics-is to be struck by the continuing racial and sexual hostility in U.S. workplaces today, and also at courts' too frequent unwillingness to address it. Courts throw out plaintiffs' cases even where the facts involve such egregious employer behavior as, in the race context, supervisors repeatedly calling employees the n-word and using other racial epithets, ordering African American employees to perform work others in the same job classification do not have to do, and imposing disci- pline white employees do not face for comparable conduct.2 In the gender context, courts throw out plaintiffs' cases even where supervisors have en- gaged in egregious sexual harassment.' Why such results? In all the cases just described, employees reacted to employers' demeaning treatment an- grily-for example, by cursing, shouting, refusing an order, or leaving the workplace-and then were fired for insubordination. The article will refer to such acts, which fall short of threats of violence and are brief in duration, as mild to moderate insubordination and will use the approach of the Na- tional Labor Relations Board (NLRB or the Board) to define this term. Under the Board's approach, to be discussed further in Section III below, the conduct may not involve violence or actual threats of violence; it may not substantially interfere with workplace productivity; and it may not continue over a sustained period but instead involve a short, spontaneous outburst by an employee who generally exhibits acceptable workplace conduct but has been angered by a supervisor's problematic act. Under the NLRB's approach, such acts do not cause employees to lose their rights to protection against the employer conduct prohibited under the National Labor Relations Act (NLRA). But when plaintiffs in the analogous Title VII context commit acts of mild or moderate insubordination in reac- * Professor of Law, American University Washington College of Law; J.D. Yale Law School, 1988. I would like to thank Binny Miller, Michael Selmi, Charles A. Sullivan and the participants in the 2013 Colloquium on Scholarship in Employment and Labor Law for very helpful comments on an earlier draft, and Daniel B. Amodeo, Walakewon Blegay, Sara Falk, David Kutch, and Erin Zacuto for excellent research assistance. ' Civil Rights Act of 1964, Pub. L. 88-352, 78 Stat. 241 (codified as amended in scattered sections of 2 U.S.C., 28 U.S.C., and 42 U.S.C.). 2 See cases discussed infra Section II-A. 'See generally Anne C. Levy, Righting the Unrightable Wrong: A Renewed Call for Adequate Remedies Under Title VII, 34 ST. Louis U. L.J. 567 (1990) (citing examples of employees fired for insubordination following their reactions to egregious sexual harassment).

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