The author

WLJ avatar image

Wright Lindsey Jennings

Wright Lindsey Jennings


Wright Lindsey Jennings

This is part of a series of articles by Wright Lindsey Jennings’ labor and employment team examining key trends for employers and the workplace in 2018. The series was featured in Arkansas Business

Just like it’s in style these days for superheroes to battle each other on the big screen, two big employment laws are coming to blows – Title VII of the Civil Rights Act of 1964 (and the obligation of an employer to enforce ideals related to equal employment opportunities) and the National Labor Relations Act (NLRA) (and the right of an employee to engage in protected concerted activity).

The fight has been brewing for a while. But on Aug. 8, the Eighth Circuit entered the fray when it issued a split decision in favor of the National Labor Relations Board (NLRB) in Cooper Tire & Rubber Company v. NLRB, No. 16-2721.

Here’s the background. Cooper Tire fired employee Anthony Runion for his conduct on a picket line for yelling at replacement workers (many of them African-American) brought in during a lockout, “Hey, did you bring enough KFC for everybody?” and “Hey anybody smell that? I smell fried chicken and watermelon.”

Runion’s union filed a grievance under the collective bargaining agreement and filed an unfair labor practice charge with the NLRB. The arbitrator upheld the discharge under the collective bargaining agreement, but an administrative law judge found that Cooper Tire violated the NLRA when it fired Runion. The NLRB upheld the judge’s decision, leading Cooper Tire to petition the 8th Circuit to review the case.

The dissenting judge on the panel wasn’t buying the other two judges’ argument, stating that “[n]o employer in America is or can be required to employ a racial bigot.” Making the point that the NLRA does not protect the exercise of racial bigotry, the judge pointed to the “ambiance created by Runion at the Cooper Tire work site,” where a number of African-American employees worked and quoted a judge’s comments in another case from the D.C. Circuit: Stating that “[o]ne of the necessary conditions of picketing is a confrontation in some form between union members and employees” and “[i]mpulsive behavior on the picket line is to be expected,” two of the three judges on the Eighth Circuit panel deferred to the NLRB’s ruling, in part because they did not believe Runion’s comments singled out a specific person. Despite Cooper Tire’s argument that it had “the legal obligation under Title VII to apply its lawful policy prohibiting harassment to racist statements,” the two judges believed Cooper Tire was “under no legal obligation to fire Runion” and that its “obligations under Title VII do not conflict with Runion’s reinstatement.”

“I write . . . to convey my substantial concern with the too-often cavalier and enabling approach that the [NLRB’s] decisions have taken toward the sexually and racially demeaning misconduct of some employees during strikes. 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. …

“Conduct that is designed to humiliate and intimidate another individual because of and in terms of that person’s gender or race should be unacceptable in the work environment.”

Cooper’s petition for en banc review to the full Eighth Circuit was recently denied, so the panel’s decision is now the law in this circuit.

About the time the Eighth Circuit issued the Cooper Tire decision, a situation was blowing up at Google. Now-former employee James Damore distributed to his coworkers a memo on gender issues in the tech industry. The memo, entitled “Google’s Ideological Echo Chamber,” contained statements like:

“Women, on average, have more:

“Openness directed toward feelings and aesthetics rather than ideas. Women generally also have a stronger interest in people rather than things, relative to men (also interpreted as empathizing v. systemizing). These two differences in part may explain why women relatively prefer jobs in social or artistic areas …

“Neuroticism (higher anxiety, lower stress tolerance). This may contribute to the higher levels of anxiety women report on Googlegeist and to the lower number of women in high stress jobs.”

This memo understandably angered some of Damore’s colleagues (both male and female). Generalizations can be a dangerous thing — in fact, Damore’s generalizations got him fired for “perpetuating gender stereotypes.”

“First, let me say that we strongly support the right of Googlers to express themselves, and much of what was in that memo is fair to debate … However, portions of the memo violate our Code of Conduct and cross the line by advancing harmful gender stereotypes in our workplace. … To suggest a group of our colleagues have traits that make them less biologically suited to that work is offensive and not OK. It is contrary to our basic values and our Code of Conduct, which expects ‘each Googler to do their utmost to create a workplace culture that is free of harassment, intimidation, bias and unlawful discrimination.'”While most employers want to foster a workplace that allows open discussion of issues, most employers also want to avoid being labeled a company that allows or encourages any type of openly racist or misogynist views or behavior. Here are some of the comments made by Google’s CEO Sundar Pinchai in response to Damore’s memo; you can see how he attempts to walk the fine line between Title VII and the NLRA:

Google took exception to certain, specific statements in Damore’s memo, and opted to fire him. After he was terminated, Damore filed a charge with the NLRB, claiming his statements were protected concerted conduct under the NLRA, even though his statements could be seen as an affront to the ideals expressed in Title VII (and other EEO laws). Damore’s charge was withdrawn before the board entered a decision, so we may never see how the board or a court might view the situation.

Rock and a Hard Place

So, where do things go from here?

Despite the 8th Circuit’s decision, we still tend to think the ideals that form the basis of Title VII and an employer’s need to protect itself from discrimination and harassment claims will, in general, prevail over a person’s ability to make statements that could be seen as racist or sexist. While any future decisions on the Title VII v. NLRA issue undoubtedly will be heavily dependent on the specific circumstances of each case, President Trump’s recent appointments seem to be scaling back employee protections under the NLRA.

Yes, private employers are still between a rock and a hard place on this issue, but when it comes down to it, what would you rather face – a single claim under the NLRA or several discrimination claims under Title VII that point to statements openly made by co-workers of multiple plaintiffs?