148 ANALYSING HUMAN RESOURCE MANAGEMENT
the court agreed that the employer was justified in discharging her because
she had failed to fulfil her agreed overtime and that there was an expectation
that she should have expressed her grievance in private rather than in front of
other employees. This decision shows very limited understanding of ‘normal’
human behaviour.
In a second case described by Bales (1994) an employee’s complaints to her
supervisor about racial discrimination received no adequate response so she
then went one level higher. This resulted in the termination of her employ-
ment on the grounds that she bypassed her supervisor albeit that this was con-
sistent with the company’s policy. The court regarded this behaviour on the
part of the employee as disruptive. The test in these cases arises from the case
ofHochstadtv.Worcester Foundation for Experimental Biologyin which the
employee constantly complained about sex discrimination to her colleagues
and it was alleged that this damaged relationships and interfered with their
work. The court held that there must be a balancing of the employee’s right
to air her grievances with the employer’s right to run his business. In this
case the balance did not exist when conduct of this type was exhibited and
the court found that such ‘serious acts of disloyalty provided the employer
with a legitimate, non-discriminatory basis for discharging’ her (Bales 1994:
113). Bales also points out that all challenges to an employer’s conduct will
create some degree of disruption, and worries that the courts have not set
clear standards to guide an employee in this position so that they can manage
their conduct in such a way that they will be protected.
Hyman (1997) has summarized the activities of non-HR/EEO employees
that do not appear to be protected. These include blocking traffic, refusing to
perform duties, interfering with co-workers, disrupting the workplace, engag-
ing in violence, and stealing or copying confidential documents. Presumably,
much of the information that HR managers would wish to rely upon would
be in the form of confidential information or ‘confidential documents’.
Turning to the second form of retaliation which is, broadly speaking, related
to participation in a discrimination matter. This may even be in the form of a
letter of complaint rather than a formal charge or even a threat to take action,
as well as action on one’s own behalf or on behalf of another.
An employee is protected if the employee encourages co-workers to enforce their
TitleVIIrights...,refusestosignaninaccurateaffidavit on behalf of an employer, ...
testifies on behalf of a co-worker, ... participates in a conciliation meeting on behalf of
a co-worker, ... submits affidavits on behalf of a co-worker to the EEOC, ... or submits
non-confidential documentary evidence to an agency investigating a discrimination
complaint....(Bales1994: 104–5).
As Weatherspoon (2000) points out, it would not be unreasonable to think
that EEO/AA employees should be protected when trying to enforce anti-
discrimination measures in their organizations to achieve legal compliance,