When, if ever, is swearing at your supervisor or coworkers a federally protected activity? The National Labor Relations Board (Board) currently is reconsidering what constitutes protected activity under the National Labor Relations Act (NLRA). Specifically, the board is trying to clarify when workers can be protected from discipline for using profanity or engaging in harassing behavior toward supervisors or coworkers.
The Concept of Protected Activity
The NLRA is a somewhat unique employment law in the sense that it does not set forth easily recognizable employment standards – such as a minimum wage or a prohibition against racial discrimination – but rather is intended to allow and to encourage employees to join together to address issues in the workplace. When employees act together, or engage in “concerted activity,” then they engage in protected activity under the NLRA and cannot be disciplined for that activity. So, the question under the NLRA often becomes, what is protected concerted activity and what is just outright insubordination or harassment? In other words, to what extent does the NLRA protect the use of the f-bomb (or the n-word)?
The Existing Standard — Atlantic Steel
The current standard for evaluating whether otherwise inappropriate workplace behavior is protected under the NLRA is called the Atlantic Steel test. The four factors under Atlantic Steel are (1) location of the activity or discussion, (2) the subject matter of the discussion, (3) the nature of the employee’s conduct or outburst, and (4) whether the outburst was provoked as a result of the employer violating the NLRA. Under this test, many instances of vulgar or profane comments, including racially and sexually offensive language, have been found to be protected by the NLRA. Sometimes the justification provided is that the NLRA would be meaningless if it did not take into account “the realities of industrial life.”
The Board’s Invitation
The board is considering a case, General Motors, in which the employee said (paraphrasing), “I don’t give a f_____” and “shove it up your f____ a____.” The Administrative Law Judge found that the employee engaged in protected activity. Based upon this behavior and the desire to re-examine the standards applicable to this behavior, the board invited extensive briefing by not only the parties to the case but others as well. For example, the EEOC now has filed a brief. Interestingly the EEOC notes that Title VII’s prohibition on harassing conduct contains no “blue collar” exception or any exception for workplaces “rife … with vulgar conduct.” After this comprehensive briefing is concluded, the board likely will issue a new standard for when vulgar or offensive workplace conduct is protected and when it is not.
What to Expect
Many anticipate that the board will further limit when otherwise dischargeable conduct will be protected under the NLRA. There also may be completely different standards that apply to simply vulgar behavior as opposed to behavior that rises to the level of actionable harassment under discrimination laws (remember “severe or pervasive”). Many agree that union activists should have no greater right to engage in this vulgar workplace behavior than anyone else. So, stay tuned.