My last blog focused on the NLRB’s July 21, 2020 decision in General Motors LLC, N.L.R.B., 369 NLRB No. 127 (7/21/20), returning to the Wright Line test when an employee uses profane language in the workplace and the resulting discipline that should occur.
In overturning a number of prior decisions, NLRB Chair John Ring said: “the Board has protected employees who engage in obscene, racist, and sexually harassing speech not tolerated in almost any workplace today.” (emphasis mine).
The NLRA, of course, doesn’t apply to Congress. Although the law against sexual harassment does. Referring to a female co-worker as a “f—ing bitch” would typically get an employee disciplined.
To be clear: this is not a political post. I do not care about the politics involved at all here. I do care deeply about civility and the increasing complete disregard of reasonable behavior expected of people at work. In this case, I am referring to the news first reported in The Hill the same day General Motors was decided. Here you go:
“Rep. Ted Yoho (R-Fla.) was coming down the steps on the east side of the Capitol on Monday, having just voted, when he approached Ocasio-Cortez, who was ascending into the building to cast a vote of her own.
In a brief but heated exchange, which was overheard by a reporter, Yoho told Ocasio-Cortez she was ‘disgusting’ for recently suggesting that poverty and unemployment are driving a spike in crime in New York City during the coronavirus pandemic.
‘You are out of your freaking mind,’ Yoho told her.
Ocasio-Cortez shot back, telling Yoho he was being ‘rude.’
The two then parted ways. Ocasio-Cortez headed into the building, while Yoho, joined by Rep. Roger Williams (R-Texas), began descending toward the House office buildings. A few steps down, Yoho offered a parting thought to no one in particular.
‘F—-ing bitch,’ he said.”
(emphasis mine, deletion mine). When asked to respond to this reporting, “Yoho’s office denies that he made the comment, telling CNN in a statement Tuesday that he ‘made a brief comment to himself as he walked away summarizing what he believes her policies to be: bullshit.” Nice response.
But the next day, Rep. Yoho read an apology on the floor of the house. Let’s consider the apology, in part (the rest involved Rep. Yoho talking about his background):
“I stand before you this morning to address the strife I injected into the already contentious Congress,” Yoho said in remarks on the House floor. “I rise to apologize for the abrupt manner of the conversation I had with my colleague from New York.”
* * *
Having been married for 45 years with two daughters, I’m very cognizant of my language,” Yoho said. “The offensive name-calling words attributed to me by the press were never spoken to my colleague, and if they were construed that way I apologize for their misunderstanding.”
* * *
I cannot apologize for my passion, or for loving my God, my family, and my country! I yield back!”
Note that here Rep. Yoho doesn’t say he didn’t say it (contrary to what his staff said). He says the words were not “spoken to my colleague.” So, it’s “I didn’t direct the phrase f—ing bitch at her.” Those of us who practice employment law know that this is the equivalent of the “I am sorry you felt that way” apology. It doesn’t work in the regular workplace. It shouldn’t work that way in Congress either.
Let’s put it in context. This, is not the worst thing that’s happened in the legislature. We can always look back on the caning of Sen. Charles Sumner by Rep. Preston Brooks in May 1856. At least Rep. Brooks owned it. But perhaps we can try not to push it that far?