American workplaces have come far in creating equality of opportunity for everyone and purging hostile environments.
Yet, organized labor has been more than willing to create toxic work environments to advance its causes with the approval of federal labor regulators.
Imagine if my co-worker called me a “gutter b****, “crack-head a**,” and a “crack hoe.”
How about a male colleague calling me a “whore” and exposing his privates to me? Or let’s say a co-worker on strike yelled to me and others, “Go back to Africa, you bunch of f****** losers,” and “f****** n***** scabs”?
Should any of this behavior be tolerated by our employer?
All of these are real, recent occurrences against women and Blacks at the hands of their union organizing colleagues, as the Institute for the American Worker catalogued.
In the second instance, the organizer outside of an Amazon facility at the time captured the entire altercation on camera and livestreamed it for the world, forever living online.
To their credit, the employers in these situations took action to punish the wrongdoers.
But those employers were penalized by federal labor regulators who were more committed to protecting union organizing than ensuring workplaces are free of discriminatory, derogatory, and abusive behavior.
Title VII of the Civil Rights Act of 1964 protects employees from employment discrimination based on race, color, religion, sex, and national origin, across the full spectrum of employment decisions from hiring to termination.
No worker should ever be forced to tolerate harassment and abuse at the hands of a colleague or boss. Any person who encounters this kind of behavior has every right to seek legal redress, including reporting their employer to the Equal Employment Opportunity Commission (EEOC).
Criminal investigations are not off the table either, depending on the behavior.
Employers open themselves up to liability when they tolerate hostile work environments.
As annoying as they may be, workplace harassment trainings educate employees on unacceptable behavior and warn them of the potential consequences for violating the rules.
It’s incumbent on employers to punish or fire employees who violate the law.
Apparently, no one told that to the labor unions or the NLRB.
For years, the National Labor Relations Board has set precedents that greenlight this kind of hostile work environment instead of preventing it.
For example, the Board forced Amazon to reinstate the union organizer Gerald Bryson, who was dismissed for the vile comments noted above.
The NLRB gave a tacit nod to such abusive language, concluding that “The Board has found strikers’ profane, vulgar, racist, and otherwise insulting language to be protected so long as the comments contain no threats of violence.”
Any bigoted union organizer could interpret this as a hall pass for vile and illegal behavior.
By limiting employers’ ability to police offensive, abusive, and harassing behavior or to discipline (and even discharge) wrongdoers, the NLRB tied the hands of employers.
In 2019, the EEOC blew the whistle on the NLRB for protecting such blatantly inappropriate workplace misconduct. In an amicus brief for a case before the NLRB, the Commission explained, “[E]mployers should be able to address and take corrective action vis-à-vis workers who use this kind of racist and sexist language while otherwise lawfully exercising their rights under the NLRA.”
Courts have also chided the NLRB. Obama-appointed judge on the U.S. Court of Appeals for the D.C. Circuit, Patricia Millet, said the board took “too-often cavalier and enabling approach . . . toward the sexually and racially demeaning misconduct of some employees during strikes.”
She added that “Those decisions have repeatedly given refuge to conduct that is not only intolerable by any standard of decency, but also illegal in every other corner of the workplace.”
Winking away sexually and racially disparaging conduct leads the American workplace backwards. It’s shameful that the NLRB is the one leading the charge.
But recently, the agency finally received a judicial rebuke for this approach.
In a significant decision, the U.S. Court of Appeals for the Fifth Circuit vacated an NLRB ruling against Starbucks for terminating a union-supporting supervisor with a penchant for spewing vile, sexist, and homophobic language against his employees.
He called his female colleague with a documented medical condition a “dumb f***ing b**** who can’t even use cleaners” and his store manager a “[f]***ing [p]***y,” and then went a step further, describing a sex act his store manager could perform on him.
The court drew a clear distinction between protected workplace expression, even language that might be coarse, and abusive behavior.
The Court sent a clear message to the NLRB to stop siding with union organizers, who are clearly in violation of civil rights and federal law.
This is a win for women, minorities, the disabled, and all workers.
Some accountability has come to the National Labor Relations Board for its egregious pro-labor bent that sacrificed workplace civility for union power. We only hope they will learn their lesson.