A change may be coming.
The “N” word. Referring to women in pornographic terms. Ethnic slurs.
This is “harassment” under almost all company policies, and it can violate the law, as well. At least one federal appeals court and Supreme Court Justice Brett Kavanaugh (when he was on the U.S. Court of Appeals for the District of Columbia Circuit) have agreed that a single use of the “N” word is enough to create an unlawful hostile work environment.
But maybe not if labor activity is involved.
The National Labor Relations Board, as well as many courts, have taken an extremely lenient view of this type of behavior if it arises in the context of labor-related activity. If so, the Board has said, it is protected by the National Labor Relations Act, meaning that it could be unlawful for the employer to take action against the harassing employee.
In early 2017, the Equal Employment Opportunity Commission issued proposed guidance on workplace harassment (which never became final). Among many other things, the proposed guidance recommended “workplace civility” training. Many of us pointed out that — as nice an idea as “civility” was — the EEOC’s proposal could violate the NLRA as it was then being interpreted by the NLRB. Even the EEOC acknowledged this in a footnote in the proposed guidance.
But all that may change soon.
The General Counsel of the current Board has already said that workplace civility rules will now be presumed lawful. (Yay!) And the Board has asked for briefs and comments from the public about whether it should continue to follow these older decisions.
Here are some examples of decidedly un-civil behavior that has been found to be “protected” under the NLRA. The actual quotes did not have asterisks, but this is a family blog:
“I smell fried chicken and watermelon,” said by strikers to African-American replacement workers.
“F*** you, n*****,” said by a striker to an African-American security guard who was not on strike.
Saying to the owner of the company, “F***ing mother f***ing [sic],” “a**hole,” “f***ing crook,” and that the owner was stupid, that nobody liked him, and that people talked about him behind his back.
Posting on Facebook about a supervisor, “Bob is such a NASTY MOTHER F***ER don’t know how to talk to people!!!!!! F*** his mother and his entire f***ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!”
The EEOC has taken the Board up on its offer, submitting a brief arguing that employers should be allowed to prevent harassment in the workplace and take corrective action without risking liability under the NLRA.
The EEOC says that the Board should use a standard similar to that followed by the courts in retaliation cases. Generally, “oppositional” protected activity under the anti-discrimination laws is . . . protected. But the activity can lose its protection if the individual “opposes” in a manner that is not reasonable. For example, an employer could take action against an employee who intimidated a co-worker into corroborating her harassment complaint. Or against an employee who broke into the HR office and stole his co-workers’ confidential medical files to support his disability discrimination claim.
I understand that people get angry — especially when it concerns their pay and working conditions — and may spout off. But I have never understood why racist slurs or calling the boss a “NASTY MOTHER F***ER” should have to be tolerated by an employer, NLRA or no NLRA. I hope the Board will take the EEOC’s recommendation to heart.
Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.