Under most employers’ anti-discrimination and harassment policies, an employee who makes overt racist comments toward a co-worker would likely face termination. In addition to the moral and ethical purposes behind such policies, employers may fear that failure to take strong remedial action in light of such comments could subject them to potential legal action from the target of the racist comments. However, according to a new decision from the Eighth Circuit Court of Appeals, in certain situations racist comments alone may not be enough to overcome employees’ rights under federal labor law.

In Cooper Tire & Rubber Co. v. NLRB, an employee on strike made a number of racist comments while on the picket line directed at African-American replacement workers. Other employees overheard the employee asking whether he smelled fried chicken and watermelon when a van carrying the replacement workers approached the picket line. After the employer learned of these comments, it terminated the employee for violation of its harassment policy. The employee filed a grievance and eventually an unfair labor practice charge with the National Labor Relations Board (NLRB).

The NLRB concluded that Section 7 of the NLRA guarantees striking employees the right to engage in confrontational behavior, and that impulsive acts alone are not sufficient to overcome these rights in the absence of evidence of direct coercion or intimidation. In a 2-1 decision, the Eighth Circuit agreed, noting that unpleasant and uncalled for conduct is nevertheless protected in some circumstances. In this case, the racist comments were a one-time event and were not directed at or even overheard by the replacement workers. As such, the conduct did not create a racially hostile work environment under Title VII.

The court affirmed an order reinstating the terminated employee with back pay. The dissenting judge said that employers are not required to tolerate racist behavior by employees, and that the decision requires the employer to violate federal anti-discrimination laws.

This case arose out of unusual circumstances, but it demonstrates how far the NLRB and some courts will go to prevent employers from terminating employees involved in labor activities. Other recent cases have held that vague threats against supervisors and other conduct that would otherwise result in termination are protected in the context of a labor dispute.