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The federal labor board and the agency that combats workplace discrimination plan to issue joint guidance in the near future to help employers navigate the sometimes tricky middle ground between workers’ right to open workplace communication and their right to be free from unlawful harassment and bias.
The case of James Damore, a Google worker fired for his controversial messages to colleagues about workplace diversity, illustrates the overlap between two federal workplace laws and the resulting complications for both workers and employers, Jennifer Abruzzo, acting general counsel for the National Labor Relations Board, told Bloomberg Law Nov. 9. Abruzzo said during an American Bar Association event that she was working with EEOC Chairwoman Victoria Lipnic (R) and Commissioner Chai Feldblum (D) on the guidance.
Workers have rights under the National Labor Relations Act to freely discuss workplace conditions “without fear of reprisal,” Abruzzo said. On the other hand, “employers have certain obligations and rights to maintain” a workplace free of bias or harassment against minority groups under Title VII of the 1964 Civil Rights Act.
Under the NLRA, Damore’s efforts would likely qualify as protected attempts to initiate group support for his position that Google’s diversity policies should change. But Damore’s use of gender stereotypes that may have an adverse effect on his female co-workers also could have violated Title VII.
“There is tension between the two” statutes, Abruzzo said.
“They’re trying to protect workers from harassment and we’re saying unless the harassment is pretty bad these people are protected” by labor law, she said of the Equal Employment Opportunity Commission and the NLRB. “So how do you balance between the two?”
One recent court case affirmed the balance that the board has sought to establish—at least as the NLRB was constituted during President Barack Obama’s administration.
The board in Cooper Tire & Rubber Co. v. NLRB gave an employee his job back after he was was fired for directing racial epithets at replacement workers during a strike. The board said discipline was warranted, but it held that the comments and circumstances weren’t so hostile or abusive that termination was required under Title VII.
A federal appeals court has affirmed that interpretation of the interplay between the NLRA and Title VII.
Abruzzo made clear the board’s and her own dissapproval of the man’s “terrible” racist comments.
But “the problem is that we can’t use” compliance with anti-bias laws “as a way to squelch worker’s rights to speak with one another and try to improve things,” she said.
The NLRB and the EEOC are working on joint guidance on “how to marry up the NLRA and Title VII,” and will release the document “relatively soon,” the acting general counsel said.
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