Labor Employment Law Blog

Q. Can an employer fire an employee who refused to follow orders?

A. The general answer is "yes, of course."

But the prudent employer will not do so without first examining why the employee refused to follow orders. The California Supreme Court recently held that an employee's refusal to follow a supervisor's order that the employee reasonably believed to be discriminatory constituted protected activity in a retaliation claim under the Fair Employment and Housing Act.

The employee refused to carry out an order from a supervisor to terminate the employment of a female associate who, in the supervisor's opinion, was not sufficiently attractive. After she refused to terminate the sales associate, the employee claimed she was subjected to heightened scrutiny and hostile adverse treatment.

The Supreme Court acknowledged that an employee's unarticulated belief that an employer is engaging in discrimination will not suffice to establish protected conduct for a retaliation claim.
However, an employee need not use buzzwords when opposing discrimination. All the employee needs to do is sufficiently convey the employee's reasonable concerns that the employer is acting in a
discriminatory manner.

The Court also held that unwarranted negative performance evaluations, unwarranted criticism in the presence of other employees, refusing to allow the employee to respond to unwarranted criticism, refusing the employee's request for resources and assistance, and solicitation of negative feedback from staff, when
considered collectively, materially affected the employee's employment and, therefore, amounted to adverse employment action.