Unprotected activities

Protected activities are fundamental to employment law, protected activities allow employees to advocate for themselves and others, to unionize, and to fight discriminatory employer behavior. Employees need to know whether or not their protected activities are, in fact, protected.

In limited circumstances, protected activities can be considered unprotected, such as “where the employee’s conduct in protest of an unlawful employment practice so interferes with the performance of his job that it renders him ineffective in the position for which he was employed.” Rosser, 616 F.2d at 223. In these circumstances, protected activity in opposition to an unlawful employment practice is “unreasonable.” E.E.O.C. v. Crown Zellerbach Corp., 720 F.2d 1008, 1014–15 (9th Cir. 1983).

Situations where employees protected activities are limited, and in order to determine when such situations arise courts “must balance the setting in which the activity arose and the interest and motivations of both employer and employee” Selberg, 45 Wn. App. at 472 (citing Hochstadt v. Worcester Found. for Experimental Biology, 545 F.2d 222, 232 (1st Cir. 1976)). “Disloyalty is insufficient by itself to justify [a] termination,” Blinka v. Washington State Bar Ass'n, 109 Wn. App. 575, 589, 36 P.3d 1094, 1101 (2001) (citing Selberg, 45 Wash.App. at 473, because “[a]lmost every form of ‘opposition to an unlawful employment practice’ is in some sense ‘disloyal’ to the employer, since it entails a disagreement with the employer's views and a challenge to the employer's policies.” Crown Zellerbach Corp., 720 F.2d at 1014. Additionally, this limitation of protected activity has never been applied to RCW 49.58.040.

The case law is clear that cases where the protected activity was so excessive as to make the employee unfit for employment are rare. See Stewart v. Prometric LLC, C19-1362JLR, 2021 WL 124316, at *9 (W.D. Wash. Jan. 13, 2021) (holding Stewarts emails from his business to his personal email containing information about the low-passage rate and discrimination against Somali test takers “was not so unreasonable or excessive as to remove his oppositional activity from the protection of the WLAD.”); See Selberg, 726 P.2d at 469-71 (holding that Selberg’s removal and copying documents he believed supported allegations of discrimination could be protected oppositional activity); See Kempcke v. Monsanto Co., 132 F.3d 442, 445 (8th Cir. 1998) (holding employee that gave documents to lawyer and refused to return them, could be protected under federal law); See O'Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 762-63 (9th Cir. 1996) (holding that the employee was engaged in unprotected activity when they stole documents from their supervisors office and showed them to coworkers without authorization); See Rosser, 616 F.2d at 224 (holding that the employee directly challenging their boss for an elected union position was not protected oppositional activity). For example, “the employee in Hochstadt had a long record of aggressive and questionable conduct related to her affirmative action advocacy.” Selberg, 45 Wn. App. at 472–73 (citing Hochstadt, 545 F.2d at 227–28) (quotation marks omitted). In Hochstadt, in meetings the plaintiff repeatedly;

[I]nterpose[d] personal grievances and salary complaints, [to] discuss[ed] the inadequacy of the Foundation's affirmative action program, and [to] criticize[d] the Foundation's administration and its director, Dr. Hoagland, and assistant director, Dr. Welsch. These complaints interfered with the meetings, disrupted the discussions, and eventually caused discontinuation of the meetings.

. . .

Plaintiff also circulated rumors that the Foundation would lose much of its federal funding because it was not complying with regulations concerning affirmative action programs. To allay the apprehension created by these rumors, on at least three occasions the Foundation had to invite an official from HEW to assure scientists at the Foundation that they were in no danger of losing federal funding.

. . .

Also in 1974, Dr. Hochstadt invited a reporter from the Worcester Telegram to examine her files containing confidential salary information for employees at the Foundation. The reporter wrote several articles in the Telegram.

Hochstadt, 545 F.2d at 227-28.

In Hochstadt, the court held these activities were unprotected because it “resulted in poor work performance by her and also in diminished performance and reduced morale in other employees who worked with her.” Crown Zellerbach Corp., 720 F.2d at 1014–15 (citing Hochstadt, 545 F.2d at 227).