RE: Restrictions on Prohibiting Potentially Discriminatory Speech and Conduct 

To Our Clients and Friends: 

The National Labor Relations Board recently issued a ruling interpreting the restrictions that the National Labor Relations Act places on an employer's ability to discipline its employees for potentially discriminatory or harassing speech and conduct.  Because of the conflict it creates with other employment laws, we felt it an important development. 

In that case, a security guard had physical restrictions which prevented her from fully performing her job.  Specifically, she could not carry a firearm or handle classified trash.  Several co-workers learned of her medical condition and its associated limitations.  After the security guard overheard her co-workers discussing her limitations, she complained to her supervisor that the  co-workers were creating a hostile work environment in violation of the Americans with Disabilities Act.  As a result, the supervisor instructed the co-workers to stop all discussion of the security guard's condition and limitations. In the days that followed, the co-workers continued to discuss the security guard's limitations.  After learning that the potential harassment had continued, the employer disciplined the co-workers.  One co-worker was terminated, in part, because he failed to comply with the supervisor's instructions. 

The co-workers filed an unfair labor practice charge claiming that the employer violated their rights under the National Labor Relations Act when it ordered them to stop discussing the security guard's condition and limitations. The co-workers claimed that these discussions were work-related and therefore protected.  They claimed that the discussions arose out of their concern that the security guard's limitations may result in job safety issues and that the security guard may be violating the collective bargaining agreement by not fulfilling all of the job requirements. 

On the other hand, the employer claimed that it was merely attempting to deter a potential violation of the Americans with Disabilities Act by disciplining the co-workers for failing to follow a supervisor's order and for speech and conduct that potentially could have created a hostile work environment. 

The Board sided with the co-workers.  It found that the employer had violated the co-workers' rights under National Labor Relations Act and ordered the disciplinary action rescinded.  In its decision, the Board stated, "We recognize that the [employer] has obligations under other statutes, including the ADA, that may in some circumstances justify the prohibition of certain kinds of speech and conduct . . . however, any such prohibitions must be narrowly tailored in order to avoid unnecessarily depriving employees of their Section 7 [of the NLRA] rights." 

Taken as a whole, the Board's decision makes it significantly more difficult for all employers to protect themselves from discrimination claims under statutes such as the Americans with Disabilities Act.  Based on the Board's decision, companies may prohibit discriminatory or potentially discriminatory conduct.  However, it is essential that the prohibitions imposed are very specific and do not prohibit employees from discussing work related subjects.  Broad, generalized rules prohibiting potentially discriminatory speech or conduct can violate the National Labor Relations Act.  This rule applies to all employees, regardless of union status. 

If you have any questions regarding this development, please give either David Strock or Peter Bennett a call.