This week the NLRB issued a blockbuster decision addressing employees’ abusive and foul language in the workplace. . In the past, the Board has given many employees a free pass when they are disciplined or fired for using foul, abusive, or even racist/sexist language as long as the language occurs in the context of activity otherwise protected under the National Labor Relations Act. To make matters more complex, the Board historically utilized different analytical constructs to determine whether foul or abusive language retains its protection under the NLRA, differentiating between language when used on social media or among co-workers, when made during conversations with the employer, or when made on a picket line. And while the end result of these different constructs yielded wildly inconsistent results, they all effectively ruled out any consideration of whether the employer actually intended to retaliate against the employee for engaging in protected activity versus whether the employer actually intended to discipline or discharge the employee for the foul or abusive language. Intentional retaliation for protected activity would be a clear violation of the NLRA, while discipline for foul or abusive language would not.
Overruling an extremely broad swath of past Board decisions, the Board concluded that foul or abusive language in the workplace is not entitled to any special protection under the Act. Indeed, prior Board law appeared to be in direct conflict with EEOC law governing workplace harassment, countenancing vile, racist, and sexist language on the picket line, for example. Instead, the Board ruled that when an employee is disciplined or discharged for using foul or abusive language in the context of otherwise protected activity, the Board will use its long-standing burden-shifting approach. Under this approach, the employee must demonstrate that she engaged in protected activity, the employer was aware of that activity, and the employer had animus against that activity such that there is a sufficient basis to presume a causal relationship between the discipline or discharge and the protected activity. Once this showing is made, the employer may still escape liability by demonstrating that it would have taken the very same disciplinary action if the foul or abusive language occurred outside the context of protected activity. In other words, an employer is entitled to prove that it intended to impose discipline for the language itself, rather than for the protected activity.
The Board’s past decisions in this milieu have produced ridiculous and oft-times repugnant results. For example, in 2016 the Board found against an employer when it disciplined a picketing employee for shouting to black replacement workers: “Hey, did you bring enough KFC for everyone?” and “Hey, anybody smell that? I smell fried chicken and watermelon.” In 2015 the Board ruled against an employer for discharging an employee who posted on Facebook (without the *), that a manager “is such a NASTY M**** F**** don’t know how to talk to people!!!!!! F*** his mother and his entire f***ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!” It’s about time the Board reigned in such blatant racism and inexcusable abuse in the workplace, and it is simply shocking that it condoned and literally protected such language in the past.