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The Provoked Insubordination Doctrine

The provoked insubordination doctrine addresses the situation where an employer engages in behavior towards an employee with the intent to induce insubordination. Once the insubordination has been elicited, the employer uses the insubordination as an excuse for the employee's termination. An employer's attempt to induce an employee's insubordination to create an excuse for firing the employee can be used as evidence of discrimination or retaliation. Furthermore, where the employer actually provokes a reaction from a employee, that reaction should not justify a decision to impose a disproportionately severe sanction. This is an important doctrine to keep in mind in cases where an employee has engaged in less than professional conduct. Employers seize upon that conduct as the excuse for the termination. The provoked insubordination doctrine is an effective tool to counter the employer's argument and to persuade a judge that the evidence creates a factual issue regarding motivation that properly belongs to the jury.

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