Welcome
Daily Labor Report®

Harassment in Workplace May Seem Obvious, Except When It Isn’t

Nov. 20, 2018, 11:15 AM

Cooper Tire & Rubber Co. thought it was finished with Anthony Runion when it fired him for yelling racial slurs at workers brought in to cross a picket line.

Until a federal appeals court ordered Cooper to rehire Runion with back pay.

“I told clients after that decision to pick a plaintiff,’' said Jonathan Segal, an attorney at Duane Morris in Philadelphia who advises businesses on labor and employment issues. “Do you want the NLRB to sue you on behalf of a racist or a misogynist or do you want the EEOC to sue you on behalf of someone harmed by a racist or misogynist?”

Six years later, in the midst of the #MeToo movement and political polarization that has spilled over into workplaces, there’s still no clear and consistent definition of where protected labor activity ends and unlawful workplace harassment begins.

The Cooper Tire case and a high-profile lawsuit against Google spurred the National Labor Relations Board and the Equal Employment Opportunity Commission to work toward joint guidance on what harassment is under federal law.

The agencies have since shelved that initiative, saying much of the question was resolved by a NLRB decision involving Boeing Co. that loosened restrictions on general workplace civility rules. But they left gray areas.

“The Boeing decision clearly says you can have a civility code that says people need to treat each other with respect,” EEOC Commissioner Chai Feldblum (D) told a group of lawyers at an American Bar Association event. “Obviously, if you apply that civility code to punish someone for union activity—guess what?—that will be a problem.”

The Republican-majority NLRB, in a case challenging a “no camera” rule at a Boeing facility outside of Seattle, said companies can impose general workplace conduct restrictions without violating workers’ labor rights. And three months later, the board rejected a complaint by former Google engineer James Damore, who was fired over a 3,000-word screed in which he blamed gender disparities at the tech giant on “biological differences” between men and women and accused the company of nurturing a “politically correct monoculture.”

Those decisions give businesses significant leeway to enforce general civility rules on the job, several labor and employment attorneys told Bloomberg Law. They don’t shed any light, however, on trickier issues like aggressive behavior on a picket line and vulgar barbs slung at managers in the runup to a union election.

Picket Line Problems

In a memo following the Boeing decision, NLRB General Counsel Peter Robb said general civility rules are part of a category of workplace restrictions presumed not to infringe workers’ rights to engage in “concerted activities” for “mutual aid and protection” guaranteed by the National Labor Relations Act. Robb and the board have yet to tackle how those rules might apply on the picket line.

NLRB rulings have recognized that strikes are unusual and inherently disruptive. A different legal framework has applied to picket lines than what the board uses in everyday work settings, where employers have more discretion to prevent disruptions, said Manuel Quinto-Pozos, an attorney with Deats Durst & Owen who represents workers and unions.

“It would erode worker protections if the board did away with the recognition of that difference,” Quinto-Pozos told Bloomberg Law. “This should not be seen as unions condoning repugnant behavior. But the breathing space on the picket line is broad enough to sometimes allow for repugnant but protected behavior.”

In general workplace situations the board tries to balance an employer’s interest in maintaining its work environment with an employee’s right to collective action. The standard is looser on the picket line, where the NLRB has likened misbehavior to moments of “animal exuberance” that may be excused.

The board in a 1984 case involving striking workers at a Clear Pine Mouldings plant in Oregon said that picket-line speech can lose legal protection if it’s threatening or coercive.

The NLRB has applied the Clear Pine Mouldings standard in several cases to defend vulgar speech and racial epithets, including the Cooper Tire case. In a 2006 ruling, for instance, the board found that a picketing worker at a motorcycle aluminum die casting facility in Pennsylvania didn’t lose legal protections for raising his middle fingers and yelling racial slurs at a black security guard.

The NLRB similarly in 2014 protected a striker who allegedly grabbed his crotch and made an obscene gesture toward a female, non-striking co-worker. A federal appeals court in Washington, D.C., upheld that finding two years later, although Judge Patricia Millett penned a concurring opinion that blasted the NLRB for repeatedly permitting the “types of demeaning and degrading messages that for too much of our history have trapped women and minorities in a second-class workplace status.”

Questions in ‘Hot Situations’

The trap for employers is that Title VII of the 1964 Civil Rights Act makes them liable if they don’t take appropriate action to root out harassment and eliminate what courts call a “hostile work environment.”

“We understand that in a hot situation there may be some less than ideal conduct, but if it becomes a clear violation of Title VII that’s a problem,” Segal said.

Robb, who was confirmed as the board’s top prosecutor after being tapped by President Donald Trump last year, wants to challenge some of those earlier board decisions when new cases eventually get to the board. NLRB Associate General Counsel Alice Stock recently told a group of attorneys that Robb “would like to offer an alternative analysis” for the five-member board to consider in cases surrounding offensive behavior on the job.

“The general counsel believes that the NLRA and Title VII should be read in harmony with each other and that conduct that violates one law should not and is not to be protected under the other law,” Stock said.

Meanwhile, other situational factors outside of the picket line also highlight the ongoing conflict between the two laws. That includes offensive conduct in the runup to a union election.

The board said in 2015 that a worker who posted an obscenity-laced tirade against his boss on Facebook didn’t lose his legal safeguards. The offending Facebook post, the board said, was part of a series of worker attempts to protest and improve how they were being treated by supervisors. The incident also took place amid a union organizing campaign.

An appeals court later backed up that decision.

More cases are likely on the way, according to Quinto-Pozos.

“Obviously #MeToo and the Black Lives Matter movement are making this issue more salient,” said Quinto-Pozos. “But as practitioners, we have to deal with conflict and uncertainty in the law.”

To contact the reporter on this story: Chris Opfer in New York at copfer@bloomberglaw.com; Robert Iafolla in Washington at riafolla@bloomberglaw.com.