Battle of the 7s Report

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Battle of the 7s Report: Lauren McFerran’s Weaponization of NLRA Section 7 Against Title VII Civil Rights Protections, Allowing Racist and Sexist Harassment in the Workplace

by Matthew Mimnaugh, former Chief Counsel to Commissioner Keith Sonderling of the Equal Employment Opportunity Commission

Title VII of the Civil Rights Act of 1964 (“Title VII”) and other federal laws prohibit discrimination in the workplace based on race, color, religion, sex, national origin, disability, genetic information, and age. Discrimination under this statutory framework includes harassment, and employers face liability from federal enforcement actions and civil suits if they permit racist, sexist, and other sanctioned language in the workplace.

The Equal Employment Opportunity Commission (EEOC), the federal agency tasked with enforcing federal laws banning workplace discrimination, recently released guidance explaining in great detail that insults and slurs could trigger liability under Title VII and other federal laws.

While the guidance is new, the Supreme Court has made clear for decades that employers have a legal responsibility to prevent harassment in the workplace, which makes the 2023 National Labor Relations Board’s (NLRB or Board) decision in its Lion Elastomers case all the more troubling.

In Lion Elastomers, the NLRB, led by Chair Lauren McFerran, ruled that Section 7 of the National Labor Relations Act (NLRA or Act) in some instances prevents employers from taking action against employees using blatantly discriminatory or harassing language in the workplace, so long as the comments are made in the context of labor union activity. Release of the decision marks the second time Chair McFerran sought to excuse discriminatory conduct in the context of union activity. She previously argued in a dissent from an NLRB request for public input that “[i]t is not the role of the Board, in interpreting the Act, to make it as easy as possible for employers to maintain workplace decorum.”

The provision of Section 7 Chair McFerran claims protects racist and sexist slurs simply states that employees have the right “to engage in … concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities.” No part of Section 7 explicitly permits unlawful language nor is there any reason to think such language should be protected by the Board or override employers’ obligations under federal civil rights laws.

Employers should be free to stop discriminatory language and harassment not just because of Title VII but rather because of their own standards of decency. Yet in either case the NLRB is denying job creators the ability to protect their employees and maintain an amicable, civil
workplace. The rhetoric the Board protects can create a culture of fear and destroy a respectful workplace. Yet under the current NLRB standard, employees who were punished for such offensive remarks might be reinstated—and even receive back pay.

Workers deserve better. Courts should reject the Board’s position. Moreover, the Senate has the power to withhold confirmation from any Board nominee who has refused to concede job creators have the inherent right to protect workers against harassment and discrimination. Similarly, Congress could use both its lawmaking ability and its power of the purse to pass legislation and appropriations riders correcting the Lion Elastomers decision and making it clear that employers have the right—and the duty—to protect workers from discrimination and abuse in the workplace.

Click here to download the report.