Legal

EEOC Pushes NLRB to Find Common Ground on Workplace Harassment

By Jon Hyman

Jun. 22, 2016

It’s no secret that I’m not a fan of the NLRB’s expanded coverage of protected concerted activity. One area over which I’ve been particularly critical is the NLRB’s position on the confidentiality of workplace investigations and workplace civility policies.

Now, the EEOC has also taken up the challenge. Earlier this week the EEOC published the report of its Select Task Force on the Study of Harassment in the Workplace. The 88-page document [pdf] covers all facets of workplace harassment.

The aspect of the report on which I want to focus is the agency’s challenge of the NLRB’s protected-concerted-activity position.

We heard strong support for the proposition that workplace investigations should be kept as confidential as is possible, consistent with conducting a thorough and effective investigation. We heard also, however, that an employer’s ability to maintain confidentiality – specifically, to request that witnesses and others involved in a harassment investigation keep all information confidential – has been limited in some instances by decisions of the National Labor Relations Board (“NLRB”) relating to the rights of employees to engage in concerted, protected activity under the National Labor Relations Act (“NLRA”). In light of the concerns we have heard, we recommend that EEOC and NLRB confer and consult in a good faith effort to determine what conflicts may exist, and as necessary, work together to harmonize the interplay of federal EEO laws and the NLRA. …

Incivility can also sometimes represent covert manifestations of gender and racial bias on the job. In other words, facially neutral, uncivil behaviors may actually be rooted in animus against members of a protected class and may subtly contribute to a hostile work environment. We fully recognize that Title VII was not meant, and should not be read, to be “a general civility code for the American workplace.” But promoting civility and respect in a workplace may be a means of preventing conduct from rising to the level of unlawful harassment. …

We recognize that broad workplace “civility codes” which may be read to limit or restrict certain forms of speech may raise issues under the NLRA, which is outside of the jurisdiction of EEOC. In light of that potential tension, we recommend that EEOC and NLRB confer and consult, and attempt to jointly clarify and harmonize the interplay of the NLRA and the federal EEO statutes.

Kudos to the EEOC, not only for taking on the important issue of workplace harassment, but also for taking to task the NLRB for its positions that conflict with the EEOC’s mission to eliminate unlawful harassment from the workplace. I am cautiously optimistic that the NLRB will accept this challenge and come to a more reasoned and rational approach on confidentiality and civility, which does not force employers when investigating harassment complaints to make a Hobson’s choice between violating Title VII or violating the NLRA.

Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at JHyman@Wickenslaw.com.

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