by Joshua M. Henderson
Seyfarth Shaw LLP is an IMA Member
Just when employers thought they were safe to restrict offensive speech and restore decorum in the workplace, a recent decision by the Board serves as a stark reminder that offensive workplace speech may still find protection under the National Labor Relations Act.
In Constellium Rolled Products Ravenswood, LLC, the Board decided that an employee who wrote the words “whore board” on an overtime sign-in sheet was engaged in protected activity by protesting unilateral employer changes to overtime scheduling.
Though the decision split 2-1 (with Member Emanuel dissenting), the Board hardly batted an eye at the use of the word “whore” by an employee in a labor dispute, other than to quote a passage from a prior decision that “the language of the shop is not the language of ‘polite society.’” In fact, the crux of the dispute between the majority and the dissenter was over employer property rights only, and whether employee defacement of an employer’s postings should be protected. Of course, “whore” can mean something other than a misogynistic epithet. Although the Board characterized this language as “harsh and arguably vulgar,” it also observed that the phrase “whore board” was “clearly implying that those who signed it were compromising their loyalty to the Union and their coworkers in order to benefit themselves and accommodate the [Employer].” Maybe. But the Board gives not a whit of concern to this gendered language and how the use of the word “whore” to describe those with whom one disagrees is ultimately corrosive and detrimental to the cause of women’s equality in the workplace.
Judge Millett of the D.C. Circuit issued a powerful opinion two years ago in which she admonished the Board for its casual indifference to the effects of racist and sexist speech while giving wide latitude to the emotional responses one sometimes finds in labor disputes, noting that the Board’s “repeated forbearance of sexually and racially degrading conduct in service of that admirable goal [of protecting section 7 rights] goes too far.”
Given the evidence in this case, however, Constellium is not the best vehicle to judge whether the Board has heeded Judge Millett’s call for greater sensitivity. According to the decision, even supervisors used the phrase “whore board” and vulgar language was otherwise tolerated. Nevertheless, it feels like the Board missed an opportunity to state clearly that language can wound, and that employees can express their fervent disagreement with management without using such language. This case is a practical reminder, too, that employers jeopardize their defense to restricting offensive language in the workplace when supervisors also casually use such language.
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