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Workplace Law Lowdown | National Labor Relations Board (NLRB) Overrules Precedent Protecting Abusive Language

By: Gary S. Fealk

07/31/20

Long-standing NLRB precedent has protected abusive and harassing language when linked to protected union activity in most instances.  Many cases have even excused racist and/or sexist language when used during an organizing campaign or while otherwise used while engaging in protected concerted activity.  This put employers in difficult the difficult position of either condoning language that could run afoul of Title VII of the Civil Rights Act or taking disciplinary action that the NLRB may consider running afoul of the National Labor Relations Act. 

On July 21, 2020, the NLRB overruled prior precedent in General Motors, LLC, 369 NLRB No. 127 (2020) by holding that foul or abusive language in the workplace is not entitled to any special protection under the Act.  Specifically, the Board held that when an employee is disciplined or discharged for using harassing or abusive language in the context of otherwise protected activity, the Board will apply the same standard as it does in other alleged unlawful discipline or discharge cases.  Under General Motors, to hold the employer liable for an unlawful employment action there must be proof that 1) the employee engaged in protected activity, 2) the employer was aware of that activity, and 3) the employer had animus against that activity and that there was a causal connection between the adverse employment action and the protected activity.  If this prima facie burden is met, the employer may demonstrate that it would have taken the same action even if the harassing or abusive language occurred outside the context of protected activity. 

The bottom line is that the General Motors case makes clear that foul and abuse language is not protected merely because it is used in conjunction with an employee’s protected concerted activity.  Instead, the Board will review the employer’s decision to determine if the protected concerted activity was a motivating factor in the discipline or discharge. 

Gary S. Fealk is an attorney with Bodman PLC in Troy, Michigan. You can reach him at gfealk@bodmanlaw.com. Bodman cannot respond to your questions or receive information from you without first clearing potential conflicts with other clients. Thank you for your patience and understanding.

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