A divided, three-judge panel of the U.S. Court of Appeals for the Eighth Circuit, upholding a decision of the National Labor Relations Board (NLRB), has ruled that an employer violated federal labor law by discharging an employee for hurling racially offensive insults at African-American workers crossing a picket line.
The 2–1 panel ruling by the appeals court in Cooper Tire & Rubber Co. v. NLRB, No. 16-2721 (8th Cir. August 8, 2017), concludes that because the employee’s behavior was not persistent, terribly severe or directed to any particular employee, and was not likely to incite violence on the picket line, it fell squarely within the protections of the National Labor Relations Act (NLRA). In a lengthy dissent criticizing the panel majority, Judge Arlen Beam stated that “No employer in America is or can be required to employ a racial bigot.”
NT Lakis had filed a friend-of-the-court brief on behalf of the Center for Workplace Compliance (CWC) urging the Eighth Circuit to overturn the NLRB’s ruling in light of the obligations employers have under federal civil rights laws — most notably, Title VII of the Civil Rights Act of 1964 (Title VII) — to proactively prevent, and promptly correct, harassing conduct. CWC’s brief was joined by the U.S. Chamber of Commerce and National Federation of Independent Business.
The panel majority, largely ignoring these Title VII concerns, found that the comments made here — which included racist references to chicken and watermelon — were not severe or pervasive enough to constitute actionable harassment under Title VII. Accordingly, because the employer was not obligated to take any action to correct conduct that was not unlawful, it could not use Title VII as an excuse for firing the employee in question, the court concluded.
CWC Members can read more here.