Racist Comments on Picket Line are Protected

In another decision evidencing the tension between protected activity under the National Labor Relations Act and prohibited activity under Title VII and other antidiscrimination laws, a divided U.S. Court of Appeals for the Eighth Circuit found that an employer violated the Act when it fired a worker on the picket line who yelled racist comments at a group of African-American replacement workers.

In Cooper Tire & Rubber Co., the Eighth Circuit noted that under applicable National Labor Relations Board precedent, “a firing for picket-line misconduct is an unfair labor practice unless the alleged misconduct may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act.” The NLRB and courts have been reluctant to find coercive misconduct unless an individual has been singled out for mistreatment by the picketers, or where the statements contained overt or implied threats, or were accompanied by threatening behavior or physical acts of intimidation. Here, because the statements were yelled at a group of employees and were unaccompanied by threats or gestures, the Eighth Circuit found that the worker’s conduct was protected.

The employer argued that it had to fire the worker in order to comply with its legal obligation under Title VII to prohibit racial harassment. The Eighth Circuit decision responded that there was no “legal obligation” to fire the worker, and suggested that the employer could have met its obligation to prevent harassment by warning the worker instead. Of particular interest, Judge Beam vehemently dissented from the majority opinion, stating that, “No employer in America is or can be required to employ a racial bigot” and he would have found racial bigotry to be unprotected by the Act. Yet, unfortunately, Judge Beam stands in the minority, and therefore employers should be aware that discriminatory conduct that seemingly warrants termination may, if it happens on a picket line, be protected.