NLRB v. EEOC: Damned if you fire, damned If you don’t

By Sean Higgins of CEI.

"The National Labor Relations Board’s (NLRB) aggressive new enforcement stance is creating a terrible bind for some businesses: if they try to avoiding penalties from the NLRB, that may cause them to run afoul of other requirements coming from the Equal Employment Opportunity Commission (EEOC).

That was the upshot of a letter sent to two congressional committees by the Coalition for a Democratic Workplace, a free market ad-hoc group comprised mostly of trade associations. The letter was sent to the Senate Health, Education, Labor, and Pensions Committee and the House Education and the Workforce Committee. It argued that complying with recent rulings by NLRB administrative law judges requiring the rehiring of disruptive employees would leave businesses open to being penalized by the EEOC for allowing hostile work places. It urged the committees to “rein in” the NLRB.

The NLRB has often called on companies to reinstate fired workers who had been involved in union organizing. The coalition argues that, in some recent cases, the workers had been fired for directing abusive and demeaning language at co-workers or supervisors. The NLRB has long argued that such language is a protected activity under the National Labor Relations Act. The board’s rationale is that the rhetoric used in organizing efforts can sometimes get heated and therefore activists should be given leeway.

One 2020 case, Amazon.com Services LLC v. Gerald Bryson, showed just how far this could go. The case involved the worker using a bullhorn to call a female colleague a “gutter bitch” and “crack ho,” among other language, after she dismissed his criticisms of the employer. Amazon fired the bullhorn user, only to be told by the board that he must be rehired.

Other cases have involved workers fired for employing similarly abusive language, and even racial insults, but the NLRB has usually sided with the workers. The Board has claimed that their organizing efforts earned them protection under the NLRA. Abusive language would have to include an active threat of violence to be prohibited, the board asserted.

Businesses argue that the NLRB’s requirements could put their workers at risk. “This standard protects harassers that violate federal antidiscrimination laws, is dangerous for employees’ wellbeing, and exposes employers to significant liability under the law,” the coalition argued.

The concern is not theoretical. The EEOC has told the NLRB not to be too lenient regarding hostile rhetoric. The EEOC argued in a 2019 amicus brief, in a case called General Motors v. Robison that “[E]mployers must address racist or sexist conduct that violates Title VII [of the Civil Rights Act of 1964], and may need to do so even before the conduct becomes actionable in order to avoid liability for negligence … the EEOC urges the NLRB to consider a standard that permits employers to address such conduct, including by disciplining employees, as appropriate.” The case involved a worker directing racially charged language at a supervisor.

In short, companies can find themselves trapped in a damned-if-you-fire, damned-if-you-don’t situation between two powerful regulatory agencies. Because regulators are supposed to issue clear rules of behavior, this is troubling. Businesses can’t follow the rules if they can’t know what the rules are. The public is entitled to have agencies require mutually consistent standards of behavior before they start enforcing them on the rest of us."