As a "promising practice" for preventing unlawful harassment, the EEOC has endorsed civility and "respect workplace" training, so the Board's change in position relieves some of the tension between the two agencies' stances on addressing harassment.
Significantly, the Board explained that, "[a]lthough the maintenance of [certain] rules will be lawful, the application of such rules to employees who have engaged in NLRA-protected conduct may violate the Act, depending on the particular circumstances presented in a given case." For example, in Cooper Tire & Rubber Co. v. NLRB, the Eighth Circuit upheld a decision by the NLRB that Cooper Tire violated the Act by firing an employee for making racist statements on the picket line (see this prior post). Pursuant to the Board's new Boeing decision, it might not violate the NLRA to adopt a rule prohibiting racist conduct, even if it is on the picket line, but it still might be unlawful to take certain actions against an individual who engaged in protected conduct.
Although the Cooper Tire decision has been criticized by some employer groups for placing employers in a no-win situation -- either violating the NLRA or Title VII -- such concerns appear to be overblown. A report by Acting Chair Victoria Lipnic and Commissioner Chai Feldblum cautions against adoption of "zero tolerance" policies that impose a "one-size-fits-all" approach. Instead, responses to harassment should be proportionate to the offense. In Cooper Tire, the court noted that even if the employer was obligated to take some action in response to the racist picket line conduct at issue in that case, it was not obligated to fire the perpetrator. Indeed, the discipline imposed in Cooper Tire may have exceeded what the EEOC would have recommended.
In Boeing, the Board has sought to balance "employee rights and employer interests," so even if the Board does not narrow what it considers to be protected picket line conduct, it may uphold some forms of discipline imposed for protected conduct. Thus, even if an employer could not justify firing an employee for picket line conduct, the Board might conclude that less severe forms of discipline would be permissible under the Act.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.