During a pandemic, protests, and a polarized election season, employers have walked an ever-increasingly fine line between protecting employee speech in the workplace and enforcing rules on workplace conduct. That conflict is no more evident than the line of cases under Section 7 of the National Labor Relations Act (NLRA), which protects the rights of all employees-unionized or not-to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection."
Section 7 has long been read to entitle employees to "use intemperate, abusive, or insulting language without fear of restraint or penalty if [they] believe[d] such rhetoric to be an effective means to make [their] point."1 As a result, such speech often drew sharp conflicts between Section 7 and anti-discrimination laws like Title VII of the Civil Rights Act of 1974 (Title VII). Under applicable precedent, too often the scale had tipped in favor of abusive speech when made within the context of Section 7. As a practical matter, this often put an employer between a rock and a hard place: allow harassing or profane speech in the workplace and risk violating anti-harassment laws, or discipline employees who violate acceptable workplace norms and face a potential unfair labor practice charge under the NLRA. Indeed, in its seminal 2016 report on harassment in the workplace, the U.S. Equal Employment Opportunity Commission (EEOC) noted the tension between federal civil rights laws that guard against harassment, and their potential inconsistency with the NLRA.2
But no more, says the National Labor Relations Board (NLRB). On July 21, 2020, the NLRB issued its much-anticipated decision in General Motors LLC, 14-CA-197985, 369 NLRB No. 127, restoring the balance between Section 7 protected concerted activities and other federal laws prohibiting abusive workplace speech. Squarely rejecting the notion that abusive language must be tolerated in furtherance of Section 7, the Board abandoned prior precedent and held that the burden-shifting approach of Wright Line, 251 NLRB 1083 (1980), governs cases of abusive speech.
To establish a violation under Wright Line, the NLRB's general counsel must initially show that an employer imposed discipline or otherwise took an adverse action against an employee because of their Section 7 activity. If that threshold is met, an employer can defend its actions by showing that it would have taken the same action even in the absence of the Section 7 activity. Put more simply, if an employer proves that it imposed discipline for activity that it would have censured even in the absence of Section 7 protection, the employer prevails.
A Unified Theory of Protected Concerted Activity
The Board's decision was prompted by the "inconsistent outcomes" in Section 7 cases produced by a "variety of setting-specific standards." More specifically, the Board was concerned with having one set of standards for encounters with management under the four-factor analysis of Atlantic Steel Co., 245 NLRB 814, 816 (1979), another for exchanges between employees and social media posts under the "totality of the circumstances" test,3 and still a third for offensive statements and conduct on the picket line.4 The Board was particularly concerned that "violations found under these standards have conflicted alarmingly with employers' obligations under federal, state, and local antidiscrimination laws."
The Board's catalogue of precedent protecting obscene, racist, or sexually harassing speech would make even the stoutest of heart uncomfortable. Putting aside the number of f***s, f*****s, and f***ing epithets supervisors have had to endure, examples of racist overtures and sexually harassing comments had routinely placed employers between the Scylla of permitting such conduct under Section 7 and the Charybdis of an unfair labor practice charge for imposing discipline. The General Motors case itself involved an administrative law judge's finding that Section 7 protected an employee who yelled at a supervisor that he did not "give a f*** about your cross-training," that "we're not going to do any f***in' cross-training if you're going to be acting that way," and telling him to "shove it up [his] f***in' ass." That incident was only the first of three, the second of which involved the employee "lower[ing] his voice and mockingly act[ing] a caricature of a slave," and the third in which he "began playing loud music from his phone that contained profane, racially charged, and sexually offensive lyrics" during a meeting.
To meaningfully address the untenable position employers faced in addressing such conduct, the Board had invited input from amici on when profane, racial, or sexual language lost the protection of Section 7. The responses to these invitations fell within three categories: (1) the Atlantic Steel adherents who believed that "speech protected by Section 7 of the Act can be coarse 'because of the passions such topics inflame and that it should not be censored or hindered'"; (2) the general counsel and others who proposed a per se approach that would eliminate protection for language based on race, sex, or other protected categories under Title VII; and (3) those, including General Motors, who urged the Board to jettison "setting-specific standards altogether and uphold employers' enforcement of facially neutral work rules prohibiting profane, racist, or sexist conduct unless the evidence shows that the employer used such conduct as a pretext to interfere with Section 7 activity."
The third approach coincides with the EEOC's position. As the agency tasked with administering and enforcing federal laws prohibiting employment discrimination, the EEOC has stressed that it "is critical that employers are able to take corrective action as soon as they have notice of harassing conduct-even if the harassing conduct has not yet risen to the level of a hostile work environment," because the "primary objective" of Title VII is "not to provide redress but to avoid harm."
The Board agreed: the "current standards for analyzing abusive conduct, . . . have been wholly indifferent to employers' legal obligations to prevent hostile work environments on the basis of protected traits." To buttress that point, the Board cited a recent decision of the U.S. Court of Appeals for the D.C. Circuit, which denied enforcement after finding that "the Board had failed to grapple with the employer's argument that its duty to comply with antidiscrimination laws, which might require taking prompt action against the offending employee, seemed to be in conflict with its duties under the [NLRA]."
The Wright Line Approach
To address an employer's competing obligations, the Board adopted the burden-shifting approach of mixed motive cases established by Wright Line. The Board was clear that it "read nothing in the Act as intending any protection for abusive conduct from nondiscriminatory discipline, and, accordingly, [it] w[ould] not continue the misconception that abusive conduct must necessarily be tolerated for Section 7 rights to be meaningful." Stated simply, "American workers engage in these activities every day without resorting to abuse, and nothing in the text of Section 7 suggests that abusive conduct is an inherent part of the activities that Section 7 protects or that employees who choose to engage in abusive conduct in the course of such activities must be shielded from nondiscriminatory discipline."
Under Wright Line, the general counsel must initially show that: (1) the employee engaged in Section 7 activity; (2) the employer knew of that activity; and (3) the employer had animus against the Section 7 activity, which must be proven with evidence sufficient to establish a causal relationship between the discipline and the Section 7 activity.
If the general counsel makes this showing, the employer may demonstrate that it would have taken the same action even in the absence of the Section 7 activity. But if the evidence as a whole "establishes that the reasons given for the [employer's] action are pretextual-that is, either false or not in fact relied upon-the [employer] fails by definition to show that it would have taken the same action for those reasons, absent the protected conduct, and thus there is no need to perform the second part of the Wright Line analysis."
Of course, for those practicing employment law, this framework is all too familiar: it is analytically identical to the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Much like the McDonnell Douglas framework, the Board's Wright Line precedent is designed to "honor the employer's right to maintain order and respect," to "avoid potential conflicts with antidiscrimination laws," and to make clear that the Board "will no longer stand in the way of employers' legal obligation to take prompt and appropriate corrective action to avoid a hostile work environment on the basis of protected characteristics."
An End to Tirades
As a result, employers are now more empowered to act on obscene, racist, and sexually harassing speech to discipline or terminate employees without fear of simultaneously violating Section 7. The Wright Line now governs abusive conduct cases,5 including all those currently pending before the Board.
NLRB Chairman John F. Ring put it best: "This is a long-overdue change in the NLRB's approach to profanity-laced tirades and other abusive conduct in the workplace." "For too long," he added, "the Board has protected employees who engage in obscene, racist, and sexually harassing speech not tolerated in almost any workplace today." The Board's "decision in General Motors ends this unwarranted protection, eliminates the conflict between the NLRA and antidiscrimination laws, and acknowledges that the expectations for employee conduct in the workplace have changed."
This decision is a positive development for employers as they continue to navigate thorny issues of workplace conduct in these exceedingly challenging times.
1 Old Dominion Branch No. 496, Nat. Ass'n of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264, 272 (1974).
2 Littler shareholders Jim Paretti, Michael Lotito, and Maury Baskin authored an amicus brief on behalf of a number of trade associations representing employers, urging the NLRB to reverse the case law that put employers in such a bind.
3 See, e.g., Desert Springs Hospital Medical Center, 363 NLRB No. 185 (2016).
4 See, e.g., Clear Pine Mouldings, Inc., 268 NLRB 1044, 1046 (1984).
5 Note the Board explicitly did not address its precedent on disparagement or disloyalty under decisions like NLRB v. Electrical Workers IBEW Local 1229 (Jefferson Standard), 346 U.S. 464 (1953), Desert Cab, Inc. d/b/a ODS Chauffeured Transportation, 367 NLRB No. 87 (2019), and Triple Play Sports Bar & Grille, 361 NLRB 308 (2014).
Originally published July 22, 2020.
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