You hire a new employee with great hopes of a long lasting and productive relationship. However, after a very short while, co-workers begin to complain about your new hire and her attitude towards the staff. When you attempt to counsel the employee over the complained of conduct, she raises her voice, accuses you and others within the office of being unfair and refuses to accept any responsibility for her own actions. If there was ever conduct that met the definition of insubordination, this is surely it. But what to do? Should the employee be fired or given another chance?

Typically, employees are given a little latitude when it comes to resolving interpersonal conflicts with other staff members. Certainly a counseling session is called for, but when the counseling meeting gets off-track, it may mean that the employee has to go. However, employers are typically reluctant to pull the trigger under such circumstances for fear of a lawsuit. However, at least one court recently sided with an employer's decision to terminate an employee under a similar set of facts. In the case, the family-owned commercial trucking company hired a dispatcher who at the time of hire was 51 years old. Co-workers began complaining about the employee within the first couple of months of her employment. The company moved the employee to a newly created job with the same pay and hours, but with a more flexible schedule. In her new position, the employee worked in close proximity with a younger female employee who, according to the employee, overused the phone for personal calls. A meeting was called with the employee and the younger employee to try and fix the problem. By all accounts, the meeting did not go well. Upset by the older employee's antics, and concluding that she was insubordinate, the employer decided to terminate her employment. When the employer informed her of the decision, the employee threw a fit with much name calling. Later that evening the employee called asking for severance. The employer declined. The employee sued claiming that she was the victim of age and gender discrimination.

In such a lawsuit, the employee is always required to show as part of her case that she is meeting the expectations of her employer. In this case, the court found that the employee's insubordination undermined her claims of discrimination in two ways:

  • Insubordination precluded her from proving that she "met her employer's legitimate job expectations"
  • Insubordination is a non-discriminatory reason for termination, which means that the employee was unable to show that her employer's actions were simply an excuse, or pretext, for discrimination

Although the employee claimed that she was treated differently than similarly situated male/younger employees, she was unable to show that anyone else had been similarly insubordinate and treated more favorably.

The problem with relying on insubordination as a reason for termination is because it is a very nebulous term. Typically, employers should only use insubordination as a reason for termination if the conduct clearly meets the definition of the word. Again, to avoid claims of discrimination, it is important for employers to remain consistent in enforcing a policy against insubordination, doling out similar discipline for similar conduct. The conduct in question should be documented contemporaneously and objectively. This will go a long way in defending any potential claims that may later arise.