A new decision from the National Labor Relations Board inhibits employers’ ability to discipline employees for using offensive and threatening language in the workplace. Racially or sexually offensive language can be protected under federal labor law, according to the Board, and the decision could force employers to choose between compliance with federal labor law and federal anti-discrimination law.
Background: The case involves the extent to which offensive speech in the workplace is protected under federal labor law, and correspondingly, the extent to which employers may discipline employees for using such speech. In 2019, the Trump NLRB issued a decision in General Motors in which it established that an employer may discipline employees for using offensive language in the workplace, provided they can prove that such discipline was motivated by the use of the offensive language itself, and not by any underlying concerted protected activity (i.e., not for any pro-union activity, or protests against working conditions).
The current Board overturned General Motors in its decision in Lion Elastomers LLC II and purported to return to a “long-established” Board standard for evaluating employer discipline of offensive workplace language. Under this standard, it is unlawful for employers to discipline employees for using abusive or offensive language in the course of protected activity unless the language or conduct was especially severe.
Protected activity? For employees to be protected under the NLRA for using offensive language, such language must be used while the employee is exercising “protected concerted activity.” That is traditionally understood to mean when an employee is acting in relation to the terms and conditions of their employment (e.g., pro-union activity, protests for better working conditions, etc.). Notably, the current Board interprets “protected concerted activity” particularly broadly, with almost any activity remotely related to a worker’s terms and conditions of employment considered protected by the Act. In this context, this could mean that as long as offensive speech has some potential nexus to an employee’s working conditions – even as simple as yelling at a manager – the Board would likely find it being protected by the NLRA.
How severe must language be before it loses protection under the Act? Under the Board’s standard revived by the decision, if the language used is “especially severe,” it loses protection of the Act and accordingly the employer may lawfully discipline the employee. However, the Board declined to specifically articulate what constitutes “especially severe” language, and examining previous Board cases under this standard shows a remarkable tendency to tolerate blatantly offensive and abusive language. Racial epithets, sexually offensive language, and threats to family members have all been upheld by previous Boards as protected under federal labor law, with employer discipline of such conduct correspondingly held to be unlawful. It is likely that the current Board will have a similarly “tolerant” attitude.
Outlook: The decision creates significant workplace management difficulties for employers, particularly when trying to create civil, harassment-free workplaces in an era when “employee voice” issues are increasing. Promoting a culture of diversity, inclusion, and civility becomes challenging when the employer is unable to discipline offensive language – including racially and sexually charged conduct – without running afoul of federal labor law. Further, employers may become exposed to liability under federal anti-discrimination laws such as Title VII if they are unable to prevent harassing and discriminatory language in the workplace.
