Employers in the U.S. just got more latitude to fire employees who speak up about harassment and discrimination.
They can already legally terminate people for almost any reason, including what they say at work. One of the few exceptions to that rule has been U.S. labor law protections for people protesting unfair workplace conditions.
Now, companies have wider legal authority to axe those employees, too.
New rules for employers come from a sweeping National Labor Relations Board ruling last week on the punishment of a Black employee at General Motors Co. who alleges he was speaking up about discriminatory behavior.
In 2017, GM suspended Charles Robinson, a Black electrician and union representative at a Kansas City plant, after he allegedly referred to a manager as “master,” using what a supervisor referred to as a “southern slave voice.” Robinson, who brought claims to the NLRB challenging this suspension and others, says he was highlighting the inappropriate conduct of a company official who reprimanded him for speaking too loudly.
“The way they were talking to me was racist,” he said in an interview with Bloomberg News. “They always made me out like I was threatening and intimidating them in meetings because I’m Black, and because of my size.”
In a filing in the case, GM said it disciplined Robinson for his “racially hostile and personal ad hominem attacks.”
In a unanimous decision by three Trump appointees, the NLRB established a more permissive standard for employers looking to curb derogatory speech, including comments made on social media and during strikes and protests. The board had previously often found workers to be legally protected when they had used derogatory language while speaking up against workplace conditions, especially if the comments were provoked by management’s misconduct. Companies now have the green light to discipline remarks they deem offensive as long as the government can’t prove management was motivated by hostility towards protesting or organizing.
Robinson’s claim will be reconsidered under these new guidelines.
“GM stands against harassment and discrimination,” the company said in an emailed statement. “This NLRB decision is a step towards more inclusive workplaces.”
The Board said its ruling will stop the agency from providing cover for inappropriate behavior. “This is a long-overdue change in the NLRB’s approach to profanity-laced tirades and other abusive conduct in the workplace,” the agency’s chairman, John Ring, said in an emailed statement. “For too long, the Board has protected employees who engage in obscene, racist, and sexually harassing speech not tolerated in almost any workplace today.”
But worker advocates say the new guidance will have the opposite effect, making it easier for companies to punish those who criticize or organize against bigotry at work just as the pandemic and killing of George Floyd have spurred a new wave of employee activism.
“Employees who are fighting back against racism will be fired if an employer thinks a word is not genteel enough,” said American Federation of Teachers union president Randi Weingarten. “It’s a way of thwarting speech, and it’s a way of thwarting activism.”
Mark Gaston Pearce, who served as NLRB chair under President Obama, said “the employer’s ability to establish a defense will be a hundred times easier.” Under his leadership, the board ruled that a company should reinstate a worker who was terminated for derisive comments about “fried chicken and watermelon” while picketing during a lockout.
Business advocates disagree and appreciate the new ruling’s clarity. Federal labor law shouldn’t protect racist or abusive language or conduct, said Amber Rogers, a partner at the law firm Hunton Andrews Kurth who represents employers.
Companies often abuse their power when deciding what sorts of speech to punish, an affiliate of the Services Employees International Union argued in a filing in the GM case last fall. The union cited an example of a Black school security assistant in Wisconsin who was terminated for repeating a racist slur in the process of explaining to a student why it was offensive. (The employee was rehired after a protest walkout by students and outcry from figures including the artist Cher.)
“Without intent and context, everything is offensive,” said Jaime Prater, who was fired from his job as a Starbucks Corp. shift manager in 2018 after he’d been a prominent critic of the coffee company’s labor practices. Prater, a biracial man, was terminated for what managers characterized as a series of racially insensitive comments. He said they misconstrued his statements, which included joking about having sub-par dancing skills as a half-black man and saying he disliked “crackers.” (He meant the food, not a denigration of White people.)
He filed a complaint with the California Department of Fair Employment and Housing alleging his termination was racially discriminatory, and reached what he calls a “very small settlement” with Starbucks. He believes Starbucks used his supposedly insensitive comments as an excuse to shut him up by firing him.
Starbucks declined to comment on the incident.
While labor law requires companies to allow workplace agitation, civil rights law requires them to crack down on hostile environments. The NLRB weighed those contrasting obligations when considering the case of James Damore, the Google engineer fired in 2017 after circulating a memo that criticized the company’s diversity policies, in which he cited biology as a reason for the shortage of women in tech.
In that case, NLRB prosecutors opted not to issue a complaint against the company, concluding that Damore was fired for statements that were too “harmful, discriminatory, and disruptive” to be legally protected. “Employers must be permitted to ‘nip in the bud’ the kinds of employee conduct that could lead to a ‘hostile workplace,'” agency attorney Jayme Sophir wrote in a memo.
That approach gives bosses too wide a berth to police threats to their own power, said University of Wyoming law professor Michael Duff. When managers get to decide what counts as incivility, they’ll do so based on their own biases and interests and ultimately muzzle employees, he said.
“They are in control,” he said. “And man, you don’t raise your voice to the master.”
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