A new standard established last year by the at-the-time Republican-controlled National Labor Relations Board (NLRB or Board) regarding whether offensive speech is protected by federal labor law is on the chopping block after the D.C. Circuit Court of Appeals recently sent a case back to the now Democrat-controlled NLRB to determine whether the new standard should apply.
Last year, a Republican-controlled Board issued an important decision in General Motors in which it threw out a line of Board cases that created a conflict between the National Labor Relations Act (NLRA) and an employer’s nondiscrimination obligations under federal EEO laws, including Title VII of the Civil Rights Act of 1964. General Motors established a new test that provided an employer with an opportunity to demonstrate that it consistently enforced facially neutral policies prohibiting profane or harassing conduct in the workplace without violating federal labor law.
But now, Cadillac of Naperville v. NLRB, No. 19-1150 (D.C. Cir. September 17, 2021), gives the union-friendly majority on the NLRB the opportunity to reinstate longstanding controversial precedent that in effect shielded employees’ racist and sexist speech from disciplinary action in instances where the speech was ostensibly uttered in connection with activities protected under the NLRA.
Members of the Center for Workplace Compliance (CWC) can read more here.