Dropping an F-Bomb or Uttering a Racist or Sexist Comment in the Workplace May No Longer Be Protected Activity Under the National Labor Relations Act

Miles & Stockbridge P.C.

On July 21, 2020, the National Labor Relations Board (NLRB) issued a decision in General Motors LLC, 369 NLRB No. 127 (2020) which fundamentally changed the standard for, “determining whether employees have been lawfully disciplined or discharged after making abusive or offensive statements — including profane, racist, and sexually unacceptable remarks — in the course of activity otherwise protected under the National Labor Relations Act” (Act).

Prior to its decision in General Motors, the NLRB had established three different setting-specific tests for determining whether otherwise abusive or offensive comments were protected by the Act and therefore could not be addressed through discipline or discharge.

In its press release on the decision, the NLRB stated, “while these tests were based on the view that employees should be permitted some leeway for impulsive behavior when engaging in activities protected under the Act, they often resulted in reinstatement of employees discharged for deeply offensive conduct. These decisions were out of step with most workplace norms and were difficult to reconcile with antidiscrimination law.” In commenting on the decision, Chairman John F. Ring stated, “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, the Board has protected employees who engage in obscene, racist, and sexually harassing speech not tolerated in almost any workplace today. Our 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.”

Instead of three different tests, the NLRB held that speech of this nature will be analyzed under the existing Wright Line standard which provides for a burden-shifting analysis. The NLRB held, “… going forward, these cases shall be analyzed under the Board’s familiar Wright Line standard. In our view, abusive conduct that occurs in the context of Section 7 activity is not analytically inseparable from the Section 7 activity itself. If the General Counsel alleges discipline was motivated by Section 7 activity and the employer contends it was motivated by abusive con¬duct, causation is at issue. As in any Wright Line case, the General Counsel must make an initial showing 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 be¬tween the discipline and the Section 7 activity. If the General Counsel has made his initial case, the burden of persuasion shifts to the employer to prove it would have taken the same action even in the absence of the Section 7 activity.” If, however, the evidence as a whole establishes that the employer’s stated reasons are pretextual, there is no need to perform the second part of the analysis.

This significant change in the law will provide welcome relief to employers in their efforts to ensure that their workplace is free from “profane, racist, and sexually unacceptable remarks.”

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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