NLRB Allows Discipline for Offensive Language Used During Protected Activities
Author: Robert S. Teachout, XpertHR Legal Editor
July 27, 2020
Employers no longer need overlook the use of obscene, racist or abusive language in the workplace by employees who are engaged in activity protected by the National Labor Relations Act (NLRA). Instead, employers can apply discipline using the same workplace standards as they would otherwise, provided the discipline is not motivated by anti-union animus, according to a recent ruling by the National Labor Relations Board (NLRB).
In General Motors LLC, the NLRB overturned several prior decisions that established different standards based on the setting of the employee's use of profanity and abusive language. Standards applied for language used:
- On the picket line;
- Towards managers;
- Between employees; and
- On social media.
These varying standards were intended to permit employees some latitude for behavior and language used in the heat of contentious situations during protected activities.
But the results were often out of touch with antidiscrimination laws and standards. Behavior and speech that easily ran afoul of laws governing workplace harassment were permitted by the NLRB because they happened on a picket line, or during a strike or organizing campaign. Furthermore, employers could be required to reinstate employees who had been fired for using extremely offensive, sexist or racist language.
"EEO laws, unlike the Board's current setting-specific standards, do not forgive abusive conduct because, for instance, it arises from heated feelings about working conditions or because crude language is common in the workplace," noted NLRB Chairman John Ring, writing on behalf of the unanimous Board.
In its decision, the Board held that it will use the familiar Wright Line burden-shifting standard for determining whether employees have been lawfully disciplined or discharged after making abusive or offensive statements in the course of NLRA-protected activity.
Under Wright Line, the General Counsel has the burden of first proving that the employee's protected activity was a motivating factor in the discipline. Then the burden shifts to the employer to prove it would have taken the same action even in the absence of the protected activity (i.e., the discipline was for the language itself and not the protected activity). For example, the employer can present evidence showing it has consistently disciplined other employees who engaged in similar abusive or offensive conduct.
"The NLRB's prior decisions forced employers into a Hobson's choice of violating the NLRB or violating Title VII. General Motors LLC fixes this problem," said attorney Jon Hyman, a partner with Meyers, Roman, Friedberg & Lewis and author of the Ohio Employer's Law Blog. "No longer will an employer have to risk a Board charge in the name of protecting their employees from racist, sexist or other similarly offensive language. This is a very welcome development for employers everywhere."