As a follow up to my earlier blog on how rude an employee can be to his or her employer while engaging in activity protected by the National Labor Relations Act (“NLRA”), the EEOC has filed an Amicus Brief in a matter before the NLRB chiming in on the subject. The NLRB had invited interested parties to file briefs as the Board reconsiders “standards for determining whether profane outbursts and offensive statements of a racial or sexual nature, made in the course of otherwise protected activity, lose the employee who utters them the protection of the National Labor Relations Act.”
Interestingly, the EEOC did not take a position on what standard the NLRB should use, but instead focused on the EEOC’s prohibition on harassment based on race or sex, and what an employer must do to prevent and remedy harassment of its employees. The EEOC essentially said that whatever standard the NLRB adopted, it should permit employers to discipline employees for engaging in racial or sexual misconduct while also engaging in protected activity under the NLRA.
The case itself, General Motors LLC, involved a union representative (apparently African American) who delighted in using profanity, making slavery references, and disrupting meetings by playing gangster rap on his cell phone laced with lyrics using the “N” word, as well as the constant use of the “F” word. An Administrative Law Judge had found some activity protected and other not, applying the four factors described in my earlier blog. Namely, the Board looks at: (1) where the discussion took place, (2) what the conversation was about, (3) how bad the employee’s outburst was, and (4) whether the outburst was provoked by the employer’s unfair labor practice.
To summarize the EEOC’s position, the Commission stated that employers not only should, but must take corrective action in light of employee activities that involve racial and sexual harassment. Even if the employee is engaging in protected activity under the NLRA, the EEOC says the employer is obligated to “do something” to remedy the Title VII violations, and that “do something” might include discipline. It is not clear how the NLRB will balance behavior that is protected while at the same time illegal under another federal statute.
Most employers would prefer a bright line standard. Many years ago, the Chair of the EEOC said that the EEOC had a zero tolerance for the use of the “N” word in the workplace, even if used by African American employees in “casual” conversation with other black employees. Yet, she did not say that the EEOC would necessary support firing a black employee in all circumstances where the “N” word was used. It sounds a good bit less than zero tolerance. Employers might appreciate guidance on such delicate topics.
It is my hope that the NLRB will adopt a bright line standard that permits employers to discipline employees for outbursts that would not be tolerated whether they involved protected subjects or not. If the outburst violates the Civil Rights Act, it should extinguish any protections provided by the NLRA. If the outburst involved vulgar language and/or threats, it would be up to the Board and the employee to show that similar bad language and/or threats were tolerated in other circumstances, suggesting that the protected activity was the real reason for the discipline.