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.