This sentiment is perfect for a Kenny Chesney summer concert. Now it looks like the NLRB and the EEOC can “get along”, and at the same time make it easier for employers to appropriately discipline employees who engage in unacceptable behavior, even if that behavior occurs during otherwise “protected” activity.
The EEOC’s position uniformly has been that employers are required to discipline or terminate employees who use racial or sexual epithets at work. Employers who do not take immediate corrective action can be held liable for discrimination and costly damage awards. On the other hand, until this week, the NLRB took the position that taking adverse action against employees who made such comments while protesting working conditions violates the National Labor Relations Act (NLRA). Thus, employers were often left between the proverbial rock and hard place.
In a recent landmark decision involving General Motors, the NLRB recognized that employers have a right to terminate or discipline employees who use vulgar, discriminatory or racist language even if such language is used while engaging in otherwise protected activities such as objecting to working conditions. Before this decision, the NLRB assumed that if an employee engaged in unacceptable behavior while objecting to working conditions, the two were inseparable and any discipline was unlawful. Under this prior standard, NLRB ordered employees reinstated who (i) called the owner obscene and vile names during meetings, (ii) cursed the boss’s family in vulgar and profanity-laced rants on Facebook, or (iii) shouted racial slurs while picketing.
The new General Motors case, recognizes that employers have a right to maintain order and respect in their workplace and are not required tolerate abusive or potentially illegal conduct. The NLRA was not intended to supersede an employer’s legal obligations under EEO laws to prevent hostile work environments.
However, these employer rights are not without limits. An employer still must be able to show that the poor behavior and not the protected conduct motivated the discipline. In addition, anytime discipline involves potentially protected conduct, employers should review their prior practices to make sure that they are acting consistently with those past practices, and are not overreacting.