Association to NLRB: Profane or Racist Speech Has No Place in the Workplace

November 15, 2019

HR Policy has submitted an amicus curiae brief with the National Labor Relations Board weighing in on the side of employers who protect their employees from “extremely profane or racially offensive language” in seeking to prevent a hostile work environment.

Legal quandary for employers:  Previous decisions by the NLRB have found employers to have infringed on employees’ right to engage in concerted activities by disciplining those who make racially or sexually offensive comments to coworkers and others in the course of those activities.  The Board has found such statements protected as long as they “do not constitute a threat.”  The Board had asked for public input on the issue as it considers certain pending cases.  Our brief notes that the current state puts employers “in a quandary as to their legal obligations” under both Title VII of the Civil Rights Act of 1964 and the labor law.

A threat to D&I:  “Beyond the legal ramifications, however, an inability to maintain a decorous and harassment-free workplace presents numerous issues for employers,” our brief states.  It goes on:

Diversity and inclusion have become paramount initiatives for employers across the United States. …Recruiting diverse candidates has become a priority for employers across the country, while many firms have been chastised in the court of public opinion for a perceived lack of diversity among employees. …A company culture that is perceived as unfriendly to minorities not only affects the actual performance of that company but makes it extremely difficult both to retain and to recruit talent particularly in a world where any incident can go viral in a matter of minutes and prominent publications publish lists of ratings of work environments for women and minorities.

Why it’s important:  Particularly during the previous administration, employers have long complained about how the labor laws can hamstring their ability to maintain order and discipline in the workplace—something their employees expect of them.  Favorable decisions by the NLRB in the pending cases would be helpful, but there is a longer-term need for both the NLRB and the EEOC, which enforces Title VII, to work together to harmonize the two laws.  The EEOC itself recognized the importance of harmonization in its own amicus brief filed last week.  Following the Commission's lead, our brief encourages the EEOC and the NLRB to “issue guidance, or through rulemaking, establish guidelines for employers to lawfully navigate both federal anti-discrimination statutes and the NLRA.”