Labor & Employment Law Daily NLRB: Profanity-laced tirades, racist, sexist comments no longer protected by NLRA Sec. 7
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Thursday, July 23, 2020

NLRB: Profanity-laced tirades, racist, sexist comments no longer protected by NLRA Sec. 7

By Lisa Milam, J.D.

In a landmark NLRB decision, the Board announced it would no longer tolerate offensive employee statements in the name of protecting Section 7 rights.

Announcing a new standard for determining whether employees lose the protection of the Act by making abusive or offensive comments, including racist, sexist, or profane remarks, the NLRB has made it clear that Section 7 of the National Labor Relations Act will not excuse such conduct and that employers can lawfully discipline or discharge employees who engage in it. The Board had used three different approaches when reviewing offensive comments, depending on the situation—be it an outburst at the boss, social media comments, or heckling from the picket line—but these “setting specific” approaches conflict with antidiscrimination laws, the Board explained (and the EEOC weighed in as amicus to argue as much). The most common and time-worn of these tests is Atlantic Steel, used when employee outbursts are directed at management. But this four-factor framework, first adopted in 1979, “has failed to be an effective legal standard,” the Board said, scrapping it. A single standard will now apply: Wright Line, the familiar burden-shifting approach used in NLRA discrimination cases (General Motors, LLC, July 21, 2020).

“This is a long-overdue change in the NLRB’s approach to profanity-laced tirades and other abusive conduct in the workplace,” said Chairman John F. Ring, in a NLRB press statement announcing today’s decision.

“For too long,” he added, “the Board has protected employees who engage in obscene, racist, and sexually harassing speech not tolerated in almost any workplace today. Our decision in General Motors ends this unwarranted protection, eliminates the conflict between the NLRA and antidiscrimination laws, and acknowledges that the expectations for employee conduct in the workplace have changed.

“In adopting Wright Line in this context, the General Counsel will have to show that Section 7 activity was a motivating factor in the employee’s discipline or discharge, at which point the burden shifts to the employer to prove it would have disciplined or terminated the employee even absent the protected conduct. The employer can do so by presenting evidence that it has consistently disciplined other employees for engaging in similar abusive or offensive conduct.

General Motors. An ALJ in this case had found that the automaker unlawfully suspended an employee for a profane outburst, directed at his supervisor during a meeting in which he was engaged in protected union activity. In the ALJ’s view, the employee’s remarks were not sufficiently egregious to lose the protection of the Act. The law judge had looked to Plaza Auto Center, a 2014 Board decision, and concluded the remarks in question were less offensive than conduct found protected in that case. (However, two subsequent acts by the employee did forfeit statutory protections, the judge said: one in which he used racially charged language when talking to the manager, and another when he played loud music containing profane and racially charged lyrics each time the manager entered or left the room).

Briefs sought. Challenging the ALJ’s ruling, General Motors asked the Board to overrule Plaza Auto, as well as Pier Sixty, LLC, a 2016 ruling addressing an employee’s profanity-laced Facebook posts attacking his supervisor. Urging that the racially offensive nature of the employee’s language should be given greater scrutiny, the automaker also asked the Board to overrule Cooper Tire, another 2016 decision, which involved racist comments directed at workers crossing a picket line.

On September 5, 2019, the Board issued a call for briefs on this issue, which has long vexed employers trying to maintain civility and ensure a harassment-free workplace. The Board sought comments from the parties and interested amici regarding Plaza Auto Center, Pier Sixty, LLC, and Cooper Tire.

The tests set forth in Atlantic Steel and other precedents, the Board noted, reflected the view that employees should be afforded some leeway for impulsive (and unseemly) behavior when engaging in activities protected under the Act. But in the NLRB’s view, these rulings are “out of step with most workplace norms and were difficult to reconcile with antidiscrimination law.” And they all too often meant that employees would get a pass for behavior that is “deeply offensive.”

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