Tuesday, August 21, 2012

"Jackass" Wins Unemployment Compensation Appeal Over "Moron"

The employee in Brown v. UCBR (Pa. Commw. Ct. Aug. 9, 2012) is a real jackass . . . at least that's what he claims his supervisor called him. On appeal, the employee claimed he was eligible for unemployment compensation despite some colorful signs he posted in the workplace.

Initially, the warehouse employee posted signs on an out-of-service battery that stated "Do Not Use." Well guess what happened? Somebody used. So, the employee drew up new signs: "To the moron who can’t read do not use this, do not use this battery" and "Not charging you moron."

The employer terminated him for his "threatening" and "abusive" language. The Unemployment Compensation Board of Review found that he had engaged in "willful misconduct" and denied him unemployment compensation benefits. But, the Commonwealth Court saw it differently.

The employer's policy prohibited threatening conduct, and denigrating people because of a protected characteristic (race, religion, sex . . . a long list, not including morons). Even if the employer doesn't have a specific policy on point, the employee can still engage in "willful misconduct" (that's the catch-phrase for "you're not getting UC") if he exhibits: an "intentional disregard of the employer's interest" or "a disregard of standards of behavior which the employer has a right to expect."

The Court provides some helpful analysis about rude, vulgar, and abusive language in the workplace:
Calling a person a “moron” is rude, but it does not convey an intention to inflict harm on a person or his property . . . . Here, Claimant worked in a 770,000 square foot warehouse along with 605 employees. This was not a ladies club where the servers wear white gloves and speak in hushed tones. Employer produced no evidence that “moron” and words like it were not used and not tolerated at its facility. It is telling that when Claimant was called a “jackass” by his supervisor, no discipline was imposed on the speaker. The incident established that in Employer’s warehouse the use of offensive language, such as "jackass" and "moron," might require an apology but not a discharge. Notably, "jackass," a stronger word than “moron,” was uttered in a more troubling context because it was directed by a supervisor to his subordinate . . . . Concluding that “moron” was neither threatening nor far outside the bounds for what words might be spoken in a large and busy warehouse, we hold that Claimant did not commit willful misconduct.
So, the "jackass" wins on his appeal over the use of the word "moron." I wish the Court would have provided a citation for why "jackass" is a stronger word than "moron" (is there a list/hierarchy somewhere?). I also note that the work environment plays a huge role - perhaps "moron" would be inappropriate at the "ladies club."

Image: Centre County CareerLink, where they hold Unemployment Compensation Referee hearings.