How disrespectful can an employee be without facing disciplinary action?
Eye rolling, shrugging and leaving the room before a meeting is over are actions that fall under the broad category of bad attitude. They constitute disrespect whether they are directed at a supervisor, co-worker, customer or member of the public.
In addition to using body language as a type of disrespect, there is disrespect that comes from ignoring someone’s email or phone call. Further, disrespectful conduct occurs when employees engage in name-calling with such epithets as “liar” or “incompetent jerk.” Finally, there is disrespect when an employee yells at the slightest provocation.
When are these types of comments, actions and non-actions protected by the First Amendment as free speech — or some employees’ sense of entitlement that they can say and do whatever they want in the workplace? And when are they grounds for disciplinary action? The broad answer is that it is up to the supervisor.
Undoubtedly, the recipient of the disrespect and its witnesses may feel that a certain amount of leeway is permitted to account for someone’s bad day or personality flaw. The problem with leeway is that the disrespect just grows until it is addressed. In the meantime, respectful employees start to feel uncomfortable and may take unproductive actions such as avoiding dealing with the disrespectful employee. This may hurt the overall effectiveness of the office.
The Merit Systems Protection Board (MSPB) has repeatedly upheld discipline for disrespectful behavior in the workplace and consistently supports at least some form of discipline for disrespect. The difficulty for some supervisors in holding employees accountable may come from the MSPB’s fairly common practice of applying the Douglas factors and mitigating a serious adverse action to a less serious penalty.
The Douglas factors are 12 standards developed by MSPB in a 1981 case to decide the appropriateness of a penalty for misconduct. Factors include the employee’s past disciplinary record, the notoriety of the offense, and the consistency of the penalty with penalties imposed on others.
The MSPB draws the line by prohibiting discipline for a vigorous workplace discussion in which a supervisor and subordinate exchange different views, but the subordinate does not engage in a refusal to follow orders, does not display vulgar or abusive language and ultimately follows the directive. While some supervisors might believe that a vigorous disagreement shows a recalcitrant and insolent attitude, MSPB will permit some give-and-take before it finds an employee’s mere statement of disagreement to be disrespectful of the supervisor.
Some level of disrespect is also allowed in the arena of labor relations, particularly when an employee is engaged in collective bargaining or is presenting a grievance. In this context only, rude and impertinent behavior is tolerated. But MSPB draws the line at threats, insubordination, or belligerent or offensive behavior. Employees are not allowed to hide behind the grievance process or other protected behavior, such as filing an equal employment opportunity complaint, if they harass, insult or defame the supervisor. Drawing the line in a particularly difficult situation might require some research of MSPB precedent, along with the application of some level of common sense.
Most cases of disrespect occur outside protected activity and concern more than a good-faith workplace disagreement. When disrespect happens, the supervisor should first determine how the disrespect is affecting the workplace. Second, the supervisor should articulate and record these observations since that is the “efficiency of the service” standard that justifies adverse actions. Then, look at the agency’s table of penalties and the Douglas factors to determine an appropriate penalty.
Remember: MSPB almost always approves at least a reprimand for mouthing off to a supervisor, even for a long-term employee with an otherwise excellent work record. Repeated disrespect or disrespect that includes threats of violence should be dealt with more severely. Failure to act will only encourage repeated acts of disrespect and ultimately leads to a workplace that is unpleasant and unproductive.