Given some rulings by the National Labor Relations Board (NLRB) in recent years – such as rulings invalidating civility policies or finding employers liable for disciplining employees acting in a harassing manner – many employers have struggled with how to balance National Labor Relations Act (NLRA) considerations with competing equal employment opportunity (EEO) laws. Perhaps in recognition of this tension, on Jan. 16, the NLRB's top lawyer issued a memo entitled Harmonization of the NLRA and EEO Laws.

According to a press release on the memo issued by NLRB General Counsel Jennifer Abruzzo, “The memorandum emphasizes the importance of complying with all requirements of the NLRA and the EEO laws and offers suggestions in certain key areas on how to effectuate compliance and ensure that employees receive full protections under the laws. Specifically, it addresses and provides examples for complying with both bodies of law in three key areas – workplace civility rules, investigative confidentiality policies, and employee speech or conduct in the context of NLRA-protected activity that could potentially implicate federal EEO law.”

The bulk of the memo is aimed at addressing employee conduct and comments made in the course of engaging in National Labor Relations Acit (NLRA)-protected activity, such as an employee addressing workplace concerns during a grievance meeting or contract negotiations. There can be tensions between an employer’s obligations under EEO laws (such asTitle VII) in prohibiting unlawful harassment and discrimination while at the same time allowing employees to use insults, obscenities, or other vulgar language in the course of otherwise protected conduct. 

For example, if in a heated exchange during a bargaining session, an employee starts shouting racial slurs, can an employer discipline this employee pursuant to its anti-harassment and discrimination policies to avoid liability under Title VII?

The memo also sheds some light on the factors the NLRB will consider in determining whether an employee’s offensive conduct made in the course of protected conduct loses its protections under the NLRA. For example, the board will consider whether the conduct implicated a protected characteristic, such as race, sex, national origin, disability, etc.; the proportionality of the discipline compared to the severity of the conduct; and whether the employer has routinely and consistently disciplined employees for similar behavior in the past. 

This last factor, whether the employer has disciplined other employees for engaging in similar conduct in the past, seems especially important to the NLRB's analysis. 

While the memo is not binding precedent, it at least provides some guidance for companies to consider in these sticky situations. In light of the fact a new NLRB is likely to take shape in the near future, more clarity on this issue may be on its way as well. Stay tuned.