Ever wondered whether you could curse out your boss and get away with it? That is the question the National Labor Relations Board is asking for help deciding. On Sept. 5, the board asked for comments regarding how profane, sexually offensive or racist an employee's comments must be to lose the protections of federal labor law.
Prompting the board's request is a case involving profane outbursts by a union committeeperson at General Motors who, in discussing a perceived overtime issue, made obscene and vulgar comments to a manager. Based on generally accepted workplace norms, you might be surprised to find that the board's administrative law judge found General Motors' suspension of the employee for the comments to be a violation of federal labor law. The administrative law judge based the decision on a series of rulings from the Obama administration board that gave employees broad protections to make profane, offensive or even racist comments if uttered in the context of a labor dispute.
Now the board's three Republican members want to know whether the Obama-era rulings went too far. The board has asked for the amicus briefs to consider a variety of issues, including: when should sexually or racially offensive speech become unprotected; how should workplace norms and employer civility rules affect what type of speech is tolerated; and what relevance should antidiscrimination laws like Title VII play in determining the lawfulness of protected labor speech?
The board's actions in this matter are not wholly unexpected. One of the first decisions issued by the Republican-led board was to overturn Obama-era precedent that made many civility and decorum workplace rules unlawful. The board based that decision, in part, on the "employer's legal responsibility to maintain a work environment free of unlawful harassment based on sex, race or other protected characteristics." And as the board noted here, its treatment of profane and racially and sexually offensive language "has been criticized both as morally unacceptable and inconsistent with workplace laws by Federal judges as well as within the Board."
With this as a backdrop, it is likely that the board will continue to hold employees accountable for behavior deemed unacceptable in everyday society. This is good news for employers seeking to maintain a civil workplace and an environment free of unlawful discrimination and harassment.
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