Employee's Epithets Protected Under Labor Law

Author: Michael Cardman, XpertHR Senior Legal Editor

August 24, 2022

As a recent appellate court ruling illustrates, employers may land in hot water if they discipline or terminate employees for making profane, racist or sexist remarks while engaging in activities protected under the National Labor Relations Act (NLRA).

In Constellium Rolled Products Ravenswood, LLC v. NLRB, a manufacturing company terminated an employee after he wrote "whore board" at the top of sign-up sheets for voluntary overtime. The sign-up sheets involved the employee's conditions of employment and, therefore, his speech about them could be considered protected under the NLRA.

But the manufacturer had failed to discipline or censor the use of the epithet "whore" and tolerated extensive profanity, vulgarity and graffiti throughout the workplace before disciplining the employee. In fact, one employee said the language at the workplace ranged from a "G" movie rating to "NC-17," and "whore board" rated only a "PG" on this scale.

As a result, the United States Circuit Court of Appeals for the District of Columbia Circuit concluded that the manufacturer failed to show that it terminated the employee because of his violation of its antiharassment policy rather than because of his NLRA-protected activity.

Consistency is the key: If an employer wants to fire an employee for vulgar speech that violates its antiharassment policy, it must be able to show it would have done the same even if the employee had not been organizing unions, bargaining collectively, striking or engaging in any other NLRA-protected activities.