The National Labor Relations Board recently asked for the public to weigh in on whether it should revise its standards to protect those that make profane or offensive statements in the workplace. It is widely believed that this request could lead to changes in how the NLRB defends employees as part of the National Labor Relations Act, along with resolving a possible conflict with Title VII of the Civil Rights Act of 1964.
Until now, the NLRB has defended the rights of employees that make obscene outbursts in the job place, including those which included sexually or racially offensive language. The organization has argued that the employee who makes the offensive statements should still be protected. The NLRB has been criticized for this stance as critics argue it violates the workplace rights of other employees under the Civil Rights Act.
The NLRB’s stance has come up for debate following a recent case involving General Motors. The company violated the NLRA when it suspended an employee after he directed a profane outburst at a supervisor during a 2017 meeting where the employee was engaged in union activity. A judge ruled that the employee was protected by the NLRA for the outburst but later lost that protection following two subsequent outbursts, which also led to speculations.
For its part, the Equal Employment Opportunity Commission recently weighed in on the debate, arguing that employers should encourage employees to complain of harassing conduct before it becomes actionable, so that employers can prevent a hostile work environment. The EEOC did not say what standard the NLRB should adopt but did advise the organization to consider a standard that violates Title VII or other anti-discrimination statutes, even though the communication might be a protected concerted activity.
What the NLRB ultimately decides will be important for employers, including those in federal and state government agencies. While employers do not want their employees to use profanity, and likely have rules against its use in the workplace, the NLRB’s stance until now has created a legal gray area that could be problematic. If the NRLB decides to update its policy, it could make it easier for employers to manage and punish employees that use inappropriate language.
“The EEOC does not always look at issues from the employer’s point of view, but its amicus brief shows that it understands the ‘catch-22’ that employers face when attempting to protect an employee’s rights before the NLRB, while also keeping the workplace free of discrimination and harassment,” writes James Korte, a lawyer at Sherman & Howard, LLC. “It will be interesting to see how the NLRB addresses the EEOC’s concern, and whether it changes its standards.”
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