A joint memorandum from two federal labor agencies on navigating racially charged picket-line speech that risks violating anti-discrimination laws is on hold due to an internal push from EEOC Republicans for a public hearing.
The memo by the US Equal Employment Opportunity Commission and the National Labor Relations Board is intended to help employers in situations where workers’ offensive language against others crossing the picket line raises harassment concerns, while also potentially qualifying as protected activity under federal labor law.
The memo is expected to address a legal gray area that has persisted for employers. The NLRB has ruled in the past that federal labor law protects a union member from being fired for shouting racial slurs at a replacement, a behavior that arguably would violate Title VII of the 1964 Civil Rights Act, which the commission enforces.
Republican Commissioners Keith Sonderling and Andrea Lucas voted on April 3 to pause the joint memo until a public hearing can be held on the draft, while the commission’s three Democrats voted to finalize it, Lucas and Sonderling told Bloomberg Law.
The Republicans’ request to “agenda” the memo has prevented its finalization by the five-member panel until Democratic Chair Charlotte Burrows agrees a public hearing can be held. The EEOC chair’s office has not put out official notice of a hearing, which is required a week before the session takes place.
The chair exclusively decides when public hearings are set for items that have been moved to agenda, Lucas told Bloomberg Law in an interview. “The ball has been in the chair’s court these past two months.”
Lucas said Republican commissioners pushed to “agenda” the memo and asked for a public hearing because they believe the document should be subject to public review and comment to be able to address legal ambiguities through examples provided by stakeholders with direct experience on both sides.
“I don’t think this should be a partisan issue that there should be public comment,” she said.
Sonderling said he voted to pause the memo “for the public to have a say in shaping this requested document.”
Stakeholders can’t comment during the EEOC’s hearings, only members of the commission itself, leaving a lack of opportunity for public feedback.
If the EEOC publishes the memo for public comment, Lucas and Sonderling will consider withdrawing their request to agenda, a source close to the commission said.
The source said the document has raised fears that the EEOC may be “taking a backseat” to the NLRB on several of the issues it tackles, and that the memo leans towards protection of union activity even when it risks violating anti-discrimination statutes.
The EEOC said in a statement that it cannot confirm or deny whether an issue is undergoing deliberation.
“Protecting the deliberative process is a cornerstone of the bipartisan Commission’s ability to have productive and honest conversations,” the statement said.
NLRB spokesperson Kayla Blado declined to comment on the joint memorandum, but said the two agencies are working on a separate memorandum of understanding “as part of the NLRB General Counsel’s interagency coordination initiative to take a whole of government approach to enforcement.”
Gray Areas
The decision to prepare the joint memo follows two 2023 decisions from the NLRB’s Democratic majority that overturned pro-employer precedents set during the Trump administration.
The NLRB’s decision in Lion Elastomers reversed a 2020 ruling by the board in General Motors LLC when it was controlled by a Republican majority. General Motors had given employers latitude to discipline or fire workers for using racist, sexist, or derogatory language while engaging in protected concerted activity relating to unions.
Critics of Lion Elastomers said it forces employers to open themselves up to unfair labor practice charges if they discipline workers for profane speech, or risk facing a Title VII harassment and discrimination lawsuit if they permit that speech.
The EEOC and NLRB scrapped their original plans to put out joint guidance on what qualifies as harassment in 2018 following a decision involving Boeing Co. that loosened restrictions on general workplace civility rules. That decision was overturned last year in Stericycle Inc., through which the NLRB adopted a new standard for evaluating employer work rules challenged as facially unlawful.
“Obviously we are very concerned about hostile work environment and racial slurs, so we want to help get it right,” Burrows said of the tension between Title VII and the National Labor Relations Act at a conference in March.
In separate April finalized guidance on workplace harassment, the EEOC declined to address public comments asking the agency to clarify interplay between an employer’s obligation to address harassment and the obligation to comply with the NLRA under which certain employee actions qualify as protected concerted activity.
The US Chamber of Commerce submitted comments on the harassment guidance that urged the EEOC to weigh in. “The EEOC’s authority and voice should not be compromised or subjugated to the NLRB,” the Chamber wrote.
The EEOC said in its workplace harassment guidance that the agency coordinates as needed with the general counsel of the NLRB on the issue. At the time, Burrows said the harassment guidance wouldn’t be the commission’s final say on the matter.
Robert Iafolla in Washington and Parker Purifoy in Washington also contributed to this story.
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