Consistency matters when applying anti-harassment rules

Can an employer legally fire an employee who writes "whore board" on an overtime sign-up sheet? Let's explore.

Following unsuccessful negotiations for a new union contract, Constellium unilaterally implemented a new overtime policy that required employees to sign up for overtime on a sheet posted on a bulletin board outside the lunchroom.

Employees were not happy about the new policy. Those who opposed it began calling the overtime sign-up sheet a "whore board," as they believed that those who used it to sign up for overtime were selling out their union. "Whore board" quickly became common slang in the workplace (even among supervisors). There was no evidence that Constellium disciplined anyone for saying the vulgarity.

One employee, Jack Williams, went a step further. He wrote "whore board" on the sign-up sheet. Constellium then fired him for "willfully and deliberately engaging in insulting and harassing conduct."

After seven(!) years of litigation before both the National Labor Relations Board and the D.C. Circuit Court of Appeals, it appears that we finally have some clarity over the legality of Williams' termination. 

The bottom line — Constellium unlawfully terminated Williams for engaging in protected concerted activity by singling him out for his use of an offensive term as compared its tolerance of others' use of that term or other offensive language in the workplace.

Constellium's failure to enforce its code of conduct or anti-harassment policy dooms its assertion that it would have fired Williams for use of the phrase or for an offensive writing.…

Constellium could have avoided NLRA liability by showing that it had a history of enforcing laws and policies against discrimination and harassment in a consistent manner, or by showing that it was turning over a new leaf in that regard when it disciplined Williams, but it showed neither.… [W]e find no evidence in the record that Constellium began enforcing any such standards prior to Williams. This is fatal. Constellium's lack of enforcement of its own anti-harassment policies and code of conduct … forecloses its rebuttal argument. The term at issue in this case is offensive, but the Board reasonably concluded that Constellium would not have disciplined Williams for use of it absent his Section 7 activity. 

An employer may defend against allegations that its act of discipline against an employee engaged in protected activity violated the NLRA by demonstrating that its motive was adherence to antidiscrimination laws.… Constellium did not prove that its actions were motivated by [that] desire. 

Consistency matters when firing employees for violating your anti-harassment policy. If Constellium had a consistent history of holding employees accountable for their offensive conduct in the workplace, it would have won this case. But it didn't, and that's why it appeared to the NLRB and the D.C. Circuit that there was a reason other than the policy violation that motivated the decision to fire Williams … anti-union animus. If you want to be able to hold any employee accountable you have to hold all employees accountable, without exception.