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University of Chicago Legal Forum

Abstract

Imagine two employees in the private sector workplace are discussing the possibility of selecting a union to represent their interests regarding wages and working conditions. During this conversation, a black employee notes the importance of using their collective voices to improve working conditions and compares the activity of selecting a union with the Black Lives Matter protests aimed at addressing the killings of black men in a number of high-profile incidents within the last couple of years. The other employee, a white male, responds by telling the black employee that “nothing will be gained from mentioning Black Lives Matter in this union organizing campaign. Black Lives Matter just represents a crusade to address what happened to a bunch of N-word criminals who got what they deserved. All lives matter.” The white male employee also stated “they need to stop being distracted by issues of race and focus on the only division that matters in the work-place: class.” One might be surprised to learn that the white male’s statement could arguably be protected under the National Labor Relations Act (NLRA). The National Labor Relations Board (NLRB), the agency charged with enforcing the NLRA, has recently held that employees engaged in concerted activity on a picket line may utter racial epithets at black workers with impunity. Additionally, the NLRB has a long history of allowing employees engaged in concerted activity to respond to their supervisors with vile and disgusting language that arguably includes the use of racial epithets. Further, the NLRB places the burden on the employer to show that utterances of racial epithets in the workplace would clearly result in the same disciplinary action taken absent any concerted activity associated with the communications. The question of whether offensive and racist statements should be protected under the NLRA, when uttered by employees arguably engaged in concerted activity, raises a problem that has not yet been adequately addressed by the NLRB. This Article asserts that in its decisions protecting employee use of racist speech while engaged in concerted activity, the NLRB has failed to consider the important operational and legal concerns that employers face in attempting to prevent harassment in the workplace based on race, a requirement under Title VII of the Civil Rights Act of 1964. Incidents of racism being highlighted nationally by the Black Lives Matter movement make this an important time for the NLRB, a federal agency concerned about workplace rights, to not send such a strong message that employees may utter racial epithets without any consequences. Further, these NLRB decisions send a broader, wrongful and even retaliatory message to black employees concerned about the use of racial epithets in the workplace: that nothing will happen if black employees protest this disruptive and offensive activity. This Article will review the important NLRB decisions regarding what is referred to as the audacity of protecting racist workplace speech under the NLRA. The Article will suggest an analytical change to how the NLRB should balance protection of concerted activity under the NLRA with the disruptive workplace activity of uttering racial epithets. The proposed change suggests an analytical framework that does not deter black employee protest of this disruptive behavior and accommodates Title VII’s broad retaliation analysis.

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