Twenty-First Century Labor Law: Striking the Right Balance Between Workplace Civility Rules that Accommodate Equal Employment Opportunity Obligations and the Loss of Protection for Concerted Activities Under the National Labor Relations Act

Employees who engage in protected concerted activities relating to work generally are shielded from discipline by Section 7 of the National Labor Relations Act (NLRA). Where otherwise protected work-related activity involves profanity or offensive speech or actions, whether in or out of the workplace, on a picket line, or on social media, such may violate employer civility rules and/or equal employment opportunity laws. Important interests are at stake, including for employers to maintain a safe, discrimination-free workplace; and for employees to exercise their right to communicate about workplace matters. This Article analyzes recent cases on the question when offensive employee conduct loses NLRA protection, highlighting the National Labor Relations Board’s reconsideration and revision of its standards in the General Motors case, July 2020. The Article analyzes the prior context-dependent tests applied by the NLRB to assess whether an employee should lose the protection of the Act, finding these tests more than adequate to balance the important public policies underlying both the NLRA and equal employment opportunity laws, as well as employer and employee rights to manage and work in a place with a desired level of consideration for others. The Article concludes that the Board’s new application of the forty-year-old Wright Line standard to these cases increases management rights and latitude at the expense of hindering employee rights to gather together to discuss and object to problems in the workplace

Employment Discrimination Claims Remain Valid Despite After-Acquired Evidence of Employee Wrongdoing

This article explores the legal practice area of employment discrimination and adverse decisions based on after-acquired evidence. A division among the circuits courts arose concerning the impact of after-acquired evidence of employee wrongdoing upon an employer\u27s liability for employment discrimination. When pre-trial discovery unveiled a separate nondiscriminatory reason for termination, numerous circuits allowed such previously unknown information to constitute a legitimate basis for the employment decision, following the model of a mixed-motive discharge. A trend developed however, among other circuits that after-acquired evidence of employee misconduct should not prevent the establishment of employer liability, but that it should be considered at the remedies phase. The United States Supreme Court affirmed the latter approach in /McKennon v. Nashville Banner Publishing Company

Judicial Review of the EEOC\u27s Duty To Conciliate

More than 50 years after the enactment of Title VII of the Civil Rights Act of 1964, federal courts remain unsettled on a variety of issues involving the Equal Employment Opportunity Commission\u27s ( EEOC ) pre-suit obligations. Title VII gives the EEOC the authority to enforce the statute\u27s prohibition on discrimination in the workplace. Before filing suit against an employer, the EEOC must satisfy several pre-suit requirements, including an attempt to eliminate the unlawful practice by informal methods of conference, conciliation, and persuasion. Courts disagree on the following: (1) whether the EEOC\u27s conciliation efforts are subject to judicial review; (2) what the standard of judicial review should be; (3) what the remedy should be if a court finds the EEOC failed to fulfill its pre-suit obligations; and (4) whether the EEOC may bring suit on behalf of unidentified individuals under § 706 of Title VII. In EEOC v. Mach Mining, LLC, the Court of Appeals for the Seventh Circuit was the first circuit court of appeals to find that conciliation efforts are a matter of agency discretion and are not subject to judicial review. Other courts have reviewed the conciliation process and have required that the EEOC demonstrate at least good faith efforts to conciliate. The U.S. Supreme Court granted Mach Mining\u27s petition for certiorari, and rendered its decision on April 29, 2015, as this article went to press. The Court did not specifically adopt the approach recommended by any of the lower courts. Although it disagreed with the Seventh Circuit\u27s conclusion that conciliation efforts are not reviewable, the Court\u27s decision and reasoning were more consistent with arguments made by the Seventh Circuit than by other circuit courts of appeal. The Supreme Court found that Title VII calls for a relatively barebones review of the EEOC\u27s efforts. To satisfy its pre-suit obligations, the Court stated, the EEOC must inform the employer of the specific allegation and identify which individuals or class of employees suffered from the alleged discrimination. The Commission must then engage in discussion with the employer to attempt to resolve the problem. The EEOC must present some evidence verifying its efforts to conciliate and a court may review an employer\u27s contention that conciliation did not occur. A court\u27s review of the conciliation efforts is limited to fact-finding on those issues, the Supreme Court stated. The Supreme Court\u27s decision largely echoes the Seventh Circuit\u27s concern that courts recognize the broad discretion that Title VII gives to the EEOC in resolving disputes, the importance of Title VII\u27s confidentiality provision, and Title VII\u27s overarching goal of eradicating discrimination in the workplace. The Court stated that the remedy for failure to conciliate is more conciliation and not dismissal on the merits