Decision Aims to Help Employers Comply With Antidiscrimination Laws

On July 21, 2020, the National Labor Relations Board (NLRB) issued a decision that eases the way for employers to discipline or discharge an employee based on abusive or offensive conduct—such as racist or profane remarks—committed while the employee was also engaged in activities that are protected under the National Labor Relations Act (NLRA).

The decision means that, in any NLRB case in which an employee who engaged in abusive or offensive conduct claims he or she was disciplined for NLRA-protected activity, the employer may show that its adverse employment action was lawful by proving that:

• The employee’s protected activity was not a motivating factor in the discipline or discharge; and
• It would have taken the same action even in the absence of the protected activity (for example, by showing consistent discipline of other employees who engaged in similar conduct).

This standard replaces several frameworks that previously allowed employees some leeway for impulsive behavior while engaging in NLRA-protected activities.