NLRB Rules that profanity-laced tirades and racist or sexist comments are not protected activity under the National Labor Relations Act

July 21,2020


In the landmark NLRB decision General Motors, LLC (July 21,2020), the Board announced that it is overruling earlier precendents going back to 1979 because those decisions "failed to be an effective legal standard" to determine if an employee's use of racist, sexist or profanity-laced comments is "protected activity." Now, under General Motors, LLC, a single standard applies in all such cases -- the Wright Line burden-shifting analysis normally applied in cases where an employer allegedly took adverse action because an employee engaged in "protected activity."

In 2019, an NLRB Administrative Law Judge (ALJ) concluded that the employer unlawfully suspended a bargaining unit employee for directing an angry outburst, replete with profanity, at his supervisor during a meeting in which the empolyee was otherwise engaged in "protected activity", i.e., "concerted activities for the purpose of collective bargaining or other mutual aid or protection." According to the ALJ, the employee's remarks at issue were not sufficiently egregious to lose the protection of the Act. 

General Motors appealed the ALJ's ruling to the full Board, and asked the Board to overrule earlier cases in which the Board ruled that an employee's profanity-laced Facebook posts attacking a supervisor and an employee's racists statements directed to workers crossing a picket line were protected activity. 

The NLRB's previous decisions on this subject were heavily criticized by employers trying to maintain civility and ensure compliance with anti-discrimination and anti-harassment laws and policies. 

The Board overruled the ALJ and used the General Motors, LLC case to overrule its earlier decisions because those rulings are "out of step with most workplace norms and were difficult to reconcile with antidiscrimination law." The Board also emphasized its earlier decisions repeatedly resulted in employees avoiding adverse consequences, despite engaging in "deeply offensive" workplace behavior. 

According to an NLRB press release, Chariman 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."

If you have questions about how this NLRB decision impacts your organization, please contact a member of our Labor & Employment Group



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