The controversial subject of professional football players "taking a knee" during the National Anthem has now expanded to the workplace.  In a recent case, an employer was confronted with an African-American employee protesting his employer's alleged racial mistreatment by taking a knee during a meeting.  A supervisor asked the plaintiff to step into his office following the kneeling incident.  The discussion in the supervisor's office "escalated" when the supervisor issued the plaintiff an  "official discussion," and the supervisor felt threatened and asked the plaintiff to leave, and local police were called when the plaintiff refused to leave.  The plaintiff was placed on leave without pay pending an investigation.

A federal district court in Arkansas found that the plaintiff had established a prima facia retaliation claim under Title VII, but failed to show the employer's explanation for its adverse employment action was a pretext.  While the judge found that the plaintiff's taking a knee was protected activity under Title VII, the court granted summary judgment on the plaintiff's hostile environment and race and age discrimination claims.  The plaintiff did not show circumstances indicating discriminatory disparate treatment, and the supervisor's alleged support of Donald Trump's comments about black people and bashing of Hillary Clinton and NFL National Anthem protestors was not enough to show pretext.  

Editor's Note: The case is Raynor v. Brennan, 2020 BL 326860 (E.D. Ark., 8/27/20.  This case is illustrative of situations in which an employee may engage in protected conduct and unprotected conduct at the same time.  In such situations, the employer must discipline an employee only for the unprotected conduct, as discipline for a protected conduct, like kneeling in the present situation, might be considered retaliation prohibited by the employment laws.  Obviously, a suspension pending investigation is a wise choice in such circumstances, giving the employer the opportunity to seek the counsel of competent labor and employment attorneys.