NLRB Reinstates Wright Line Test for Protected Concerted Activity Alleged to Violate Title VII of the Civil Rights Act

On July 21, 2020, the National Labor Relations Board issued a ruling in General Motors LLC, 14-CA-197985 369 NLRB No. 127 (2020), modifying its existing standard for determining whether employees have been lawfully disciplined or discharged after making statements that violate Title VII of the Civil Rights Act when engaged in activity protected under the National Labor Relations Act.

The NLRB’s decision reinstated the Wright Line test for cases wherein an employee allegedly made harassing or discriminatory remarks while also engaging in protected concerted activity. Under the Wright Line test, the NLRB must first demonstrate with some evidence (direct or circumstantial) that the employee’s protected concerted activity was a motivating factor in the employer’s decision to terminate or take another adverse action against the employee. If this is established, the burden shifts to the employer to demonstrate that it would have taken the same adverse action even in the absence of the protected activity, for example, by showing it disciplined other employees who made similar discriminatory or harassing comments. If the employer makes that showing, its disciplinary action will generally be upheld.

The Board stated that Equal Employment Opportunity laws do not forgive abusive conduct even if it arises from heated feelings about working conditions or because crude language is common in the workplace. In addition, the Board asserted that an employer’s duty to comply with antidiscrimination laws by promptly taking action against an offending employee often conflict with an employer’s duties under the NLRA.

This development is important to know because it replaces the variety of standards the NLRB previously applied. Prior to General Motors, the NLRB applied different standards depending on the circumstances – i.e., for encounters with management, exchanges between employees and posting on social media, and statements and conduct on a picket line. The General Motors decision does away with these differing standards, which took into account the context and power dynamics at play.

Note that the NLRB will apply the Wright Line test retroactively to all pending cases.  For further information about this case and its implications, contact your legal counsel.

By: Bisma Shahbaz | Auguts 20, 2020

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