On Aug. 25, 2021, the National Labor Relations Board (NLRB) issued a decision applying its new standard for cases where an employee is disciplined for using offensive speech in the course of engaging in protected labor activity. The board initially announced the new standard in its General Motors decision issued in July 2020. In summary, the General Motors standard permits an employer to issue discipline in such instances if the employer demonstrates that it would have disciplined the employee even in the absence of protected activity. The board based its General Motors decision in part on an employer’s obligation under Title VII and similar state laws to maintain a workplace free from unlawful harassment.

Nonetheless, in its Aug. 25 decision, the board held that the employer violated federal labor law by terminating an employee for writing “wh*re board” at the top of voluntary overtime sign-up sheets to protest new overtime procedures that the employer had implemented. The board based its decision on the fact that the employer had not disciplined employees for using similarly profane language in cases that did not involve protected labor activity. Thus, the board held that the employer could not claim that the employee’s discharge was motivated by its desire to comply with anti-discrimination laws, when it had tolerated similarly unacceptable behavior in the past.

Bottom Line: In applying its General Motors standard, the NLRB will not simply determine whether the offensive speech in question may violate applicable anti-discrimination laws. Rather, it will also scrutinize whether the employer tolerated such language in the past. If so, disciplining an employee for using such offensive speech in the course of engaging in protected labor activity may be found unlawful even if the speech is arguably discriminatory.