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National Labor Relations Board Resolves Catch-22 Related to Abusive Conduct

    Client Alerts
  • July 31, 2020

For years, employers seeking to enforce anti-discrimination and harassment policies have faced a vexing Catch-22. While Title VII and other federal and state laws require employers to take action against employees who engage in racist, sexist, or other abusive conduct, federal labor laws have been interpreted to protect much of such behavior if done in the context of concerted activity such as a dispute over unionization. Last week, the National Labor Relations Board reversed decades of precedent on this issue, holding that employers may consistently enforce workplace policies banning such behavior, even in situations involving concerted activity.

In General Motors, LLC, an employee directed profane and racially charged outbursts at a supervisor in a situation involving a dispute over terms and conditions of work. A federal administrative law judge initially overturned the employee’s suspension on the basis that the conduct, while offensive, was protected under Section 7 of the NLRA. On appeal, the board reversed this decision, establishing a new legal test for determining when employers can enforce policies prohibiting racist, sexist, and profane conduct.

Previously, the NLRB applied different legal tests depending on the context of the behavior. Comments made on a picket line might be protected as opposed to the same comments made in an outburst directed at a supervisor. Instead, the board established a new standard that simply looks to whether the employer has in place a policy prohibiting such conduct, as well as whether it has reasonably and consistently enforced such policy in the past. If so, the company may take disciplinary action against the offending employee regardless of the context of the behavior.

This decision gives employers straightforward guidelines for enforcing anti-discrimination and harassment policies. It should also eliminate situations where by complying with NLRB guidelines, the company is subjected to Title VII claims from employees on the receiving end of the abusive conduct.