By Eric B. Meyer
An employee was caught on video saying to black employees, “Hey, did you bring enough KFC for everyone?” and “Hey, anybody smell that? I smell fried chicken and watermelon.”
The company had a strict anti-harassment policy. So, after learning about the comments, the company fired the employee.
So, what would compel an Administrative Law Judge to require that the company reinstate him?
Why fired employee was reinstated
Well, it’s not like he’s a violent racist.
It’s because of the National Labor Relations Act. And, apparently, an employee can make all of the incredibly racist comments he wants with impunity — as long as he’s on a picket line (engaged in protected concerted activity) and the statements are unaccompanied by threats or acts of intimidation. So says an Administrative Law Judge in this opinion:
[The] “KFC” and “fried chicken and watermelon” statements most certainly were racist, offensive, and reprehensible, but they were not violent in character, and they did not contain any overt or implied threats to replacement workers or their property….The record evidence in this case does not establish that Runion’s statements were coercive or intimidating to the exercise of employees’ Section 7 rights, and it does not establish that the statements raised the likelihood of imminent physical confrontation.”
NLRA 1 – Title VII 0
So, you’re thinking, wait a minute! The company had an anti-harassment policy. Doesn’t that carry any weight here?
No. Well, unless the anti-harassment policy references picketing (yours doesn’t?). Again, according to the judge’s opinion:
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The Respondent correctly asserts that pursuant to its harassment policy, employees who violate it may be disciplined or discharged. Clearly, the Respondent has the authority to enforce company policy in the workplace. Contrary to Respondent’s assertions, however, Runion’s racist comments cannot be analyzed in a vacuum…In this regard, the harassment policy makes no reference to conduct on the picket line in situations in which such policy violations occurred in the context of conduct protected by the Act.”
So, let’s play this out. The National Labor Relations Act precludes taking action here, unless you have a anti-harassment-cum-picket policy.
What’s an employer to do?
OK, so what happens when this behavior repeats itself enough that a victim files a charge at the EEOC alleging a hostile work environment. A hostile work environment that the employer did nothing to stop. How’s that respondent’s superior defense — the one where an employer who knows of workplace discrimination must act reasonably to end it — gonna fly?
“Well, you see, Your Honor. You have to understand that this took place on a picket line. You know, a picket line. And a picket line isn’t part of the workplace. Well, not technically. So, what can you do, right?”
Good luck with that!
This was originally published on Eric B. Meyer’s blog, The Employer Handbook.