In an article published earlier this year, I asked the question whether the National Labor Relations Act (NLRA) protects racist insults. In a decision rendered on August 8, 2017, a majority of an Eighth Circuit panel, over a vigorous dissent, answered “Yes” – that the NLRA does protect racist insults by a picketing worker.

8th Circuit Ruled that Racist Insults Are Protected Speech under NLRA

The Eighth Circuit majority – comprised of Circuit Judges Benton and Murphy – ruled that the racist insults of a picketing employee remained protected under the NLRA for the following reasons:

  1. the racist insults occurred during picketing, which is a protected union activity;
  2. the racist insults were not directed at any particular individual employee;, and,
  3. the insults were not on “display” for an extended period of time but rather only in verbal exchanges.

The racist insults were, according to the majority, a mere “package of verbal barbs thrown out during a picket line exchange.”

Thus, the Eighth Circuit affirmed the Labor Board’s ruling (which had reversed an ALJ’s ruling that the employee was properly fired). Cooper Tire has now been ordered to reinstate the employment of the picketing employee, with full back pay, even though the picketing employee had hurled admittedly offensive and racist insults toward African-American replacement workers.

Circuit Judge Issues Dissent Saying Employing a Bigot is Not a Requirement for Employers

In a blistering dissent, Circuit Judge Beam began by noting, “No employer in America is or can be required to employ a racial bigot.” Judge Beam goes on to ask whether the picketing employee exhibited racial bigotry – which is “clearly yes,” Judge Beam finds – and whether the exercise of such bigotry is protected by the NLRA, which he answers “undoubtedly no.”

Can a Decision to Protect Racist Speech Stand in 2017?

The majority’s decision, in light of the evidence, would be suspect in even less sensitive times, given the strong duty imposed on employers to maintain a workplace free from racial harassment. But, in today’s climate especially, the majority’s decision defies logic. I am hopeful that Cooper Tire will seek review by the entire Eighth Circuit Court of Appeals or seek review by the Supreme Court. Employers – and those of us who advise them – need more clarity in resolving what appears to be conflicting mandates presented by this case.