Stoel Rives Law Firm : World of Work Law Blog : Disabilities, FMLA, Military Leave, NLRA : Western United States

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Most of us assume that if an employee swears at a manager or, he or she can be disciplined or even fired.  That assumption may be wrong, depending on the context in which the swearing occurs.  A federal judge recently held that the Federal Aviation Administration violated federal labor law when it removed a local union president from its premises after he used profanity toward his supervisor in the course of union activity.  Click here to read the opinion in  FAA and National Air Traffic Controllers Association. 

In FAA, an employee (who was also the union president) got into a verbal altercation with his supervisor over what the employee felt were insufficient staffing levels under their union contract.  In the course of that altercation, the employee told his boss:  “F*** you, I don't give a f***!”  (Imagine a certain four-letter word that rhymes with "duck.")  In response, the supervisor had the employee escorted off of the employer's premises.  A federal judge held that the employer's response violated the employee's rights under federal labor law.  The judge ruled that because the swearing occurred in the course of union activity,  it was protected speech:  “the use of profanity, standing alone, does not remove conduct or speech from the protection of [federal labor law]."   The Judge also noted that the outburst was brief, made in a normal tone of voice, and not overheard by other employees.

FAA teaches us an important lesson:  even relatively robust swearing by an employee during the course of otherwise protected activity may be protected.  The same logic behind the FAA decision could possibly apply to other types of protected employee speech:  union activity, harassment complaints, discrimination complaints, safety reports, etc. 

So when does profanity, even in the scope of protected activity, lose its protection?  There are no "bright line" rules, but courts look to several factors: 

• the volume, severity and duration of the outburst
• whether it is accompanies by threats or threatening gestures
• whether there is a workplace culture that condones or encourages profanity
• whether it is overheard by other employees
• whether the profanity is likely to disrupt workplace operations
• whether it rises to the level of verbal harassment that may violate the employer's policies
• whether it was a spontaneous outburst made out of frustration, instead of a premeditated attempt to humiliate the supervisor. 

In any event, employers should proceed with a great deal of caution before disciplining an employee who uses profanity in the course of a protected activity.  If the swearing was not in the course of a protected activity, disciplining the employee for insubordination or unprofessional behavior is relatively risk-free.