NLRB overrules precedent protecting abusive language

Long-standing National Labor Relations Board (NLRB) precedent has protected abusive and harassing language when linked to protected union activity in most instances. Many cases have even excused racist and/or sexist language when used during an organizing campaign or while otherwise engaging in protected concerted activity. This put employers in the difficult position of either condoning language that could run afoul of Title VII of the Civil Rights Act of 1964 or taking disciplinary action the Board may consider a violation of the National Labor Relations Act (NLRA).

New standard

On July 21, the NLRB overruled prior precedent in General Motors, LLC, 369 NLRB No. 127 (2020) by holding that foul or abusive language in the workplace isn’t entitled to any special protection under the Act. Specifically, the Board held that when an employee is disciplined or discharged for using harassing or abusive language in the context of otherwise protected activity, it will apply the same standard as it does in other alleged unlawful discipline or discharge cases.

Under General Motors, to hold the employer liable for an unlawful employment action there must be proof that: