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Recommendation runs counter to NLRB decisions favoring free speech
The Equal Employment Opportunity Commission (EEOC) has proposed guidance on preventing harassment that recommends training employees on civility—a recommendation at odds with recent National Labor Relations Board (NLRB) decisions in favor of free speech as a part of concerted activity. The disagreement makes it difficult for employers to know what disruptive employee behavior they must—and don't need to—tolerate.
The inconsistency between the EEOC's guidance and the NLRB's decisions may be most apparent in a 2015 NLRB ruling involving racial harassment on the picket lines—one where the NLRB reinstated a worker who made racist remarks to replacement workers during a strike.
"Over time I expect and hope the board will cut back on its absurd uncivil treatment toward civility and its coddling of harassers," said Jonathan Segal, an attorney with Duane Morris in Philadelphia and New York City and a member of the EEOC's Select Task Force on the Study of Harassment in the Workplace. The group's work and its task force report submitted last June—and previewed at the Society for Human Resource Management 2016 Annual Conference & Exposition—provided a foundation for the proposed rule. Segal noted, however, that he was not speaking on the commission's or the task force's behalf.
In addition to barring sexual harassment, equal employment opportunity laws prohibit harassment based on race, color, national origin, religion, sex, age, disability and genetic information. The proposed guidance also stated that harassment based on sexual orientation is prohibited.
The proposed guidance's suggestions on harassment prevention training include that training should be:
"Employers also may find it helpful to consider and implement new forms of training, such as workplace civility training," the proposed guidance added. Such training shows "significant promise for preventing harassment in the workplace," the guidance noted.
NLRB Favors Free Speech over Civility
However, the NLRB has most recently "consistently ruled in favor of employees on the basis of a protected, concerted activity analysis regarding conduct that would be considered uncivil or disrespectful," said Patricia Wise, an attorney with Niehaus Wise & Kalas in Toledo, Ohio, and a member of the SHRM Labor Relations Special Expertise Panel.
"Employees' derogatory Facebook and other social media posts and offensive remarks have been permitted by the board, while employers' civility codes and courtesy rules have been invalidated. The board has taken an aggressive approach to its review of handbook policies and employers' enforcement of those policies, such that areas of management largely unregulated for decades are now the subject of close scrutiny," said Wise, who also served as a member of the commission's harassment task force.
"The imperative of prohibiting harassing conduct is obvious to everyone, except the current board," Segal said.
The official task force report stated, "According to researchers, incivility is often an antecedent to workplace harassment, as it creates a climate of 'general derision and disrespect' in which harassing behaviors are tolerated." Uncivil behaviors can often spiral into harassing behaviors, he said. "To paraphrase the testimony of one witness who testified at a hearing of the EEOC Select Task Force, incivility is the gateway drug to harassment," he added.
Perhaps the board's most infamous ruling in favor of an uncivil employee is the board's 2015 ruling that involved a Cooper Tire and Rubber Company employee who during a strike shouted at black replacement workers, "Hey, did you bring enough KFC for everyone?" That incited another unidentified employee to shout obscenities and, "Go back to Africa." The employee who made the KFC statement then said, "Hey, anybody smell that? I smell fried chicken and watermelon." All of these racist comments were caught on company video surveillance.
The company investigated the incident, confirmed that the employee made the "KFC" and "fried chicken and watermelon" statements, and terminated the employee for gross misconduct in violation of its anti-harassment policy. But the board ruled that the employee was discharged for engaging in union and/or concerted activities in violation of the National Labor Relations Act (NLRA). The case is on appeal to the 8th U.S. Circuit Court of Appeals.
An employer that does nothing in response to racist slurs risks liability under Title VII of the Civil Rights Act of 1964, regardless of NLRA protections, noted Tim Garrett, an attorney with Bass Berry & Sims in Nashville, Tenn. "All work has dignity, and all workers deserve respect," he noted.
While he acknowledged that there's "no question picket lines can be confrontational," he said that in this case the board accepted a "vicious personal attack" based on stereotypes that society is trying to overcome.
Dialogue Between Agencies?
The first step to resolve the differences between the EEOC's and NLRB's stances on civility in the workplace is to have a dialogue about it, said Christine Walters, J.D., SHRM-SCP, sole proprietor of FiveL in Westminster, Md., an HR consultancy. Walters is also a member of the SHRM Labor Relations Special Expertise Panel.
Segal noted that the EEOC recommended in the task force report that the two agencies confer and attempt to harmonize the interplay between the NLRA, which the NLRB enforces, and the federal equal employment opportunity statutes that the EEOC enforces.
[SHRM members-only toolkit: Managing Equal Employment Opportunity]
The proposed harassment guidance notes that while taking aim at discriminatory conduct, equal employment opportunity laws "do not impose a general civility code that covers run-of-the-mill boorish, juvenile or annoying behavior." Instead, the laws focus on a "middle path that distinguishes between covering conduct that is merely offensive and requiring that the conduct cause psychological harm."
As for labor laws, "I agree that the purposes of the NLRA would be undermined if we required that every utterance be genteel and respectful in order for it to be protected," Segal said. "But what that does not mean is that the general rules that are designed to promote civility should be struck down as chilling protected concerted activity."
"I am pleased that we are able to follow up on the recommendations in our harassment prevention report with this release of the draft enforcement guidance on unlawful harassment," said EEOC Commissioner Chai Feldblum. "This guidance clearly sets forth the commission's positions on harassment law, provides helpful explanatory examples and provides promising practices based on the recommendations in the report. I believe it will be a helpful resource for employers and employees alike, and I look forward to receiving comments from the public."
Comments on the proposed rule are due Feb. 9.
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