Offensive Language May Be Protected Concerted Activity

The U.S. Court of Appeals for the D.C. Circuit ruled that the National Labor Relations Board sufficiently addressed the conflict between an employer’s obligations under federal antidiscrimination laws and employee’s rights under the National Labor Relations Act in finding unlawful an employee’s termination for writing “whore board” at the top of two overtime sign-up sheets. The result turned on what the employer had previously tolerated in the workplace – a warning to employers to be careful of what behavior they permit.

Legal Framework. Federal antidiscrimination laws require employers to maintain a harassment-free workplace. The NLRA protects employees’ rights to engage in concerted activity for their mutual benefit regarding their terms and conditions of employment. Both are implicated when employees engage in abusive and potentially illegal conduct in connection with protected concerted activity, and the Board applies the Wright Line analysis to determine whether employers have unlawfully disciplined employees in this situation.

Under Wright Line, the Board’s General Counsel must show that the employee engaged in protected activity, the employer knew of it, and the employer had animus against such activity, as proven with evidence that establishes a causal relationship between the discipline and the protected activity. Then the employer has the opportunity to demonstrate that it would have taken the same action even in the absence of the protected activity.

Factual Background. In Constellium Rolled Products Ravenswood, LLC v. NLRB, some of the company’s unionized workers protested the employer’s unilateral change in the overtime scheduling system. The union filed an unfair labor practice charge and 50 employees filed grievances, while some employees boycotted the new procedure. The term “whore board” was commonly used to describe the new overtime sign-up sheet. Six months after the change, an employee wrote “whore board” at the top of two sign up sheets. He was suspended and ultimately terminated, ostensibly for violation of the company’s harassment policy.

The Board initially found that the company disciplined the employee for the protected content of his writing, rather than his misconduct. On the first appeal, the D.C. Circuit sent the matter back to the Board to address the potential conflict between the NLRA and the employer’s anti-harassment obligations. The Board then applied the Wright Line analysis to find that the employee’s offensive actions were part of a continuing course of protected activity in protest of the overtime procedures, that the employer knew of the activity, and that there was animus against such activity, as evidenced by the fact that the use of the term was commonplace and the company had tolerated “extensive profanity, vulgarity, and graffiti in the workplace” before disciplining the employee. The Board’s decision was again appealed by the company.

The Court’s Decision. On this round, the D.C. Circuit affirmed the Board’s finding. It agreed that the employee’s writing was protected activity, and that the employer knew of the activity. The D.C. Circuit also agreed that there was evidence of animus, given the disparate treatment of the employee, as the company had otherwise tolerated graffiti and the common use of vulgarities – including the use of “whore board” by even supervisors – without imposing discipline.

With regard to the second part of the Wright Line analysis – whether the company showed that it would have disciplined the employee in the absence of the protected activity – the D.C. Circuit also agreed with the Board that the company failed to make this showing. Although the company asserted that the employee was disciplined for “insulting and harassing conduct” in violation of its rules of conduct and anti-harassment policy, there was evidence that profane, vulgar and even harassing language was routinely heard and written at the company without consequence. Thus, the company’s “failure to enforce its code of conduct or anti-harassment policy dooms its assertion that it would have fired [the employee] for use of the phrase or for an offensive writing.”

Lessons for Employers. As the D.C. Circuit noted, the company could have avoided liability under the NLRA “by showing that it had a history of enforcing laws and policies against discrimination and harassment in a consistent manner, or by showing it was turning over a new leaf in that regard when it disciplined [the employee], but it showed neither.” This lack of enforcement was determinative in this case. Thus, this case emphasizes the need for employers to be consistent in enforcing conduct and harassment policies – both as a general matter, but also to avoid NLRA liability where there is, in fact, a legitimate reason for disciplining an employee’s conduct, even in the context of protected activity.