NLRB, EEOC confront workplace speech, profanity issues

Although we rarely admit it, many concrete rules of law are based on intangible "legal fictions" that permit courts to impose some semblance of order on the chaotic world of human activity. One of the most enduring and controversial legal fictions is that in the hurly-burly of the mine and the mill—and the modern office complex—we should expect and excuse heated, even profane, racist and sexist language.

NLRA opened door to vile racist, sexist comments

It may have all started with the National Labor Relations Act (NLRA), passed in 1935, which gave all workers the right to form unions and the accompanying right to "concerted activity" to secure the privileges of industrial justice. Since then—and generously relying on the legal fiction that the workplace is a natural hotbed of intense emotions and equally fervent language—the National Labor Relations Board (NLRB) and the courts have found the coarsest imaginable racist and sexist profanity to be "protected speech," designed to secure the organizational and other rights authorized by the NLRA.