NLRB and EEOC to Provide Guidance on the Line Between Harassment and Protected Concerted Speech

November 17, 2017

With a heightened focus on harassment in the workplace, the NLRB and EEOC are working on joint guidance to help employers navigate the tension between workers' limited right to open workplace communication and their right to be free from unlawful harassment and bias.  Under the National Labor Relations Act, workers have the right to freely discuss workplace conditions without fear of reprisal, and under Title VII of the 1964 Civil Rights Act, employers have an obligation to maintain a workplace free of bias or harassment against minority groups.  Not surprisingly, a conflict between the two laws has arisen because several NLRB decisions that have been upheld by the courts have determined that the use of vulgar language, obscene gestures, and racial slurs in some workplace situations are protected by the National Labor Relations Act.  Yet, a June 2016 report published by the EEOC harassment task force recommends employers implement workplace civility training to prevent occurrences of harassment and noted that incivility can be a precursor to workplace harassment and contribute to a hostile work environment.  The new guidance, which is expected relatively soon, is intended to help employers balance their legal responsibilities between the two laws and could begin to unwind some of the Obama-era NLRB decisions in this area.