The National Labor Relations Board (NLRB) has issued a ruling making it easier to discipline or fire employees for offensive speech.
In the July 21 decision, the NRLB moved to resolve a conflict that sometimes arises between two worker protection laws:
- The National Labor Relations Act (NLRA), which protects employee rights to join together to improve wages and working conditions.
- Title VII of the Civil Rights Act of 1964, which protects employees from discrimination and harassment based on race, gender, and other characteristics.
In the case, which involved General Motors, the NLRB modified the standard for determining whether employees have been lawfully disciplined or discharged after making abusive or offensive statements. The new decision returns to the standard set in the Board’s Wright Line case decided in 1980.
The new decision “is the culmination of a long conflict” between the NLRA and Title VII, according to Burton J. Fishman, an attorney with Fortney & Scott, LLC in Washington, D.C.
The conflict arises when workers use racist, sexist, or other vulgar speech—actions that go against Title VII—in the exercise of their rights under Section 7 of the NLRA, which prohibits employer policies or conduct that may impede employee efforts to organize. Both Title VII and the NLRA apply to most private-sector employers.
Fishman says the NLRB “had been roundly criticized” for accepting and excusing heated speech that wouldn’t be tolerated in non-Section 7 situations.
When the Board sought input from the public in September 2019 on whether to keep, modify, or overrule its standard on when employees lose Section 7 protection, the Equal Employment Opportunity Commission (EEOC) was among the parties weighing in. The EEOC provided the rationale the NLRB used in its General Motors decision, Fishman says.
“For many, it was a long time coming,” Fishman says. “As [the] EEOC notes, Title VII does not have a blue-collar workplace exception.”
Fishman says the standard the NLRB adopted in its new decision is “profoundly different” from the previous standard. “Racist and sexist speech no longer has an ‘automatic’ presumption of protection,” he says.
Motivating Factor
Jo Ellen Whitney, an attorney with the Davis Brown Law Firm in Des Moines, Iowa, says that in the past there was a series of cases “that surprised all of us stating that semi-violent actions were ‘acceptable speech’ relating to workplace conditions.”
“This included one case where the employee threw a chair against the wall and some with specific racial epithets—in any other context clearly unacceptable conduct,” Whitney says.
The NLRB’s new decision reinstates the older Wright Line test, “which is basically a motivating factor test,” Whitney says. That means that if the protected activity is a motivating factor in the employer’s decision to discipline an employee, “the burden shifts to the employer to show it would have taken the action regardless,” she says. The newly reinstated standard “is more similar to the standard we see in discrimination claims,” she says.
The newly reinstated standard helps protect employees who have been subjected to inappropriate conduct from coworkers and others, Whitney says. “It will be helpful to employers trying to enforce antidiscrimination and professional conduct standards.”
Charles H. Kaplan, an attorney with Hodgson Russ LLP in New York City, also says the prior standard “had been criticized as both morally unacceptable and inconsistent with other workplace laws by federal judges as well as within the Board.”
“The NLRB’s return to the Wright Line standard in employee offensive speech cases will enable employers to rebut union and worker contentions that racist, sexist, or other disgusting speech is justified in labor disputes,” Kaplan says.
Advice for Employers
Even though the NLRB’s latest action makes it easier to discipline or fire employees for profane speech, employers still need to be consistent in taking disciplinary action, Kaplan says. “Management cannot generally tolerate foul language in the workplace and then punish employees for using crude words only when such workers are also engaged in protected concerted activities.”
Fishman also says employers should take care in dealing with Section 7 situations. “Employers should let everyone know that standards of civil conduct . . . will be uniformly applied,” he says.
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.
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