By Ann Kendell
In Cooper Tire
& Rubber Company v. NLRB (Case 08–CA–087155), a bargaining unit employee
yelled racist statements to African-American replacement workers while he was
on a picket line. These comments included: “Hey, did you bring enough KFC for
everyone?” and “Hey, anybody smell that? I smell fried chicken and watermelon.”
The employee was
fired for making these statements and he filed a grievance. The union filed an
unfair labor practice charge against the employer alleging that the employee
was discharged for exercising his Section 7 rights under the National Labor
Relations Act (NLRA). The matter was submitted to an arbitrator who found that
the employee made both statements, that the comments violated the employer’s
harassment policy and denied the grievance – determining that the employee was terminated
for “just cause.” The matter went before an administrative law judge (ALJ) who
found that the arbitrator’s decision went against the NLRA. The ALJ decision
was appealed to the National Labor Relations Board (NLRB). The NLRB agreed with
the ALJ and found that the discharge for the racist comments was in violation
of the NLRA and ordered the employer to reinstate the employee with full back
pay. The case is currently pending in the U.S. Court of Appeals for the
Eighth Circuit.
SECTION
7 of the NLRA provides employees "the right to
self-organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining or other
mutual aid or protection."[1] While the NLRB noted in its decision that the “statements
most certainly were racist, offensive, and reprehensible,” they were still
protected by the NLRA. NLRB
Decision
TITLE VII of the Civil Rights Act
of 1964 (Title VII) protects employees by:
- making it illegal to discriminate against on the basis of race, color, religion, national origin, or sex;
- making it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit; and
- requiring employers to reasonably accommodate applicants' and employees' sincerely held religious practices, unless doing so would impose an undue hardship on the operation of the employer's business.
Title VII is enforced by the U.S. Equal Employment Opportunity
Commission (EEOC), as well as through claims brought in court by private
litigants. Employers violate Title VII by requiring employees to work in a
racially hostile environment[2]
- even if the behavior occurred on a picket line.[3]
This
is not the first time that Section 7 and Title VII have been in conflict.
Within the past two years, the NLRB issued decisions establishing that
employers are limited on the confidentiality of witness statements in
harassment investigations (a general interest in maintaining the
confidentiality of company investigations or avoiding harassment and
intimidation of employees was not sufficient to support a refusal to provide
the information) and that an employer’s policy requiring confidentiality in
investigations will violate Section 7.[4] However, under Title
VII, the EEOC has issued instruction on preventive action for harassment,
stating that employers should “have a procedure for resolving ...
harassment complaints,” which is “designed to ‘encourage victims of harassment
to come forward’" and should “ensure confidentiality as much as possible.”
EEOC Guidance
WHAT
TO WATCH: If one were to wager on
this match, Title VII is the contender. The Eighth Circuit is the same court
that found behavior on a picket line may constitute a racially hostile work environment under Title VII.
