In an interview with Bloomberg, National Labor Relations Board General Counsel Jennifer Abruzzo said the legal protection for protected concerted activity can apply to political views on both sides of an issue, using masks with BLM and anti-BLM messages as an example. This signals a return to a broad interpretation of protected concerted activity, which could place employers in the difficult position of being liable under either labor or anti-discrimination laws for how they deal with harassing or offensive speech in the workplace.
As indicated in a memo by GC Abruzzo earlier this year, the Board is poised to return to the Obama-era standard under which several instances of racially and/or sexually harassing speech by employees in the work environment were protected under the National Labor Relations Act. In the interview, she stated, “If someone had a mask that said ‘BLM’ with an X through it or something like that, that would be a similar thing to someone that just had ‘BLM,’ in terms of it being protected concerted activity.”
HR Policy submitted an amicus curiae brief in 2020 arguing that forcing employers to tolerate such speech puts them at odds with federal anti-discrimination laws and undermines employers’ efforts toward diverse and inclusive corporate cultures. In July 2020 the Board abandoned the Obama-era standard in General Motors, reverting to a previous standard that offers greater flexibility for employers to take action to ensure their working environments are free of offensive or harassing speech.
Outlook: With the continued pandemic, rising labor activity, looming midterm elections, and a union-friendly administration, employers may be confronted with uncertainty as to whether their workplace inclusion policies on speech comply with the NLRA. In the meantime, they will still need to comply with anti-discrimination laws such as Title VII, potentially presenting a paradox of liability under both areas of law.