NLRB Catches Up To The #MeToo and #BLM Movements
On July 21, 2020, the National Labor Relations Board (the “Board”) issued what it described as “a long overdue” decision eliminating unwarranted protection for employees who engage in obscene, racist, and sexually harassing behavior under the guise of protected concerted activity.
Section 7 of the National Labor Relations Act guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection[.]” Section 8(a)(1) prohibits employers from interfering, restraining, or coercing employees in the exercise of their Section 7 rights. Section 8(a)(3) of the Act makes it an unfair labor practice for an employer, “by discrimination in regard to hire or tenure of employment or any term or condition of employment[,] to encourage or discourage membership in any labor organization.”
Over the years, the Board has analyzed several instances in which employees who are engaged in activities protected by Section 7 have simultaneously engaged in egregious conduct that would otherwise have resulted in discipline or discharge, including, for example, directing overtly racist statements toward African American employees, sexually demeaning comments toward female coworkers, or profanity-laced tirades at managers. The Board has historically applied several confusing standards that varied based on the setting of the misconduct, and that shielded employees from discipline for engaging in serious misconduct so long as they did so in the context of activities protected by Section 7.
In General Motors, the Board held that these varying standards would no longer be applied to such conduct, stating that “[t]hese results simply do not advance the Board’s mission of promoting labor peace or any of the other principles animating the Act. ” The Board held that the single standard that will now apply is the familiar standard set forth in Wright Line. Under the Wright Line standard, if (1) an employee engages in Section 7 activity, (2) the employer knew of the activity, and (3) the employer had animus against the Section 7 activity, which is proven with evidence of a causal connection between the discipline and the Section 7 activity, the employer is afforded an opportunity to show that it would have taken the same action in the absence of the Section 7 activity. The Board made clear that “[a]busive speech and conduct (e.g., profane ad hominem attack or racial slur) is not protected by the Act and is differentiable from speech or conduct that is protected by Section 7 (e.g., articulating a concerted grievance or patrolling a picket line).” Moreover, the Board held that the Wright Line standard will be applied retroactively to such conduct.
Title VII of The Civil Rights Act of 1964 and comparable state anti-discrimination laws make unlawful an employer’s failure to take action when it learns of harassment or abusive behavior which is based on race or sex. The General Motors decision eliminates the tension that has existed between the requirements of these anti-discrimination laws and the Board’s interpretation of what conduct is protected by Section 7 of the NLRA – a situation that was sharply and articulately criticized by federal Judge Patricia Millet in her concurring opinion in Consolidated Communications, Inc. v. National Labor Relations Board (which we blogged about here.) The decision also comports with the reality that, in the wake of #MeToo and Black Lives Matters, most employers are doing more than they ever have to ensure an equitable, inclusive, and diverse workforce free from intentional discrimination and harassment.
Of course, this will yield predictable and common-sense results. According to Shawe Rosenthal partner Gary Simpler, “the Board’s decision removes the judicial handcuffs imposed by the former legal standard, which weighed heavily in favor of protecting Section 7 conduct despite egregious conduct by the employee. Now employers can hold employees accountable for their abusive or offensive conduct on the same basis as employees who are not engaged in protected activities.” Victims of harassment, discrimination, and other abusive conduct will not have to be concerned that the wrongdoers are immune from discipline because they were also engaged in activity protected by Section 7.