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EEOC-NLRB joint memo on picket-line harassment paused

A proposed joint memorandum between the Equal Employment Opportunity Commission (EEOC) and the National Labor Relations Board (NLRB) has been put on hold due to internal disagreements and calls for public input.

The memo, intended to provide guidance to employers navigating the complex intersection of federal anti-discrimination laws and labor laws, has highlighted a gray area in employment law.

The issue at hand is how to address situations where workers engage in offensive, racially charged speech on picket lines. While such language may violate Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination, it could also be considered protected activity under the National Labor Relations Act (NLRA).

The NLRB has previously ruled that federal labor law protects union members from being fired for using racial slurs against replacement workers during a strike. This decision has left employers in a difficult position, risking unfair labor practice charges if they discipline workers for profane speech or potential Title VII harassment and discrimination lawsuits if they permit such speech.

Republican EEOC Commissioners Keith Sonderling and Andrea Lucas have pushed for a public hearing on the draft memo, arguing that stakeholders should have the opportunity to provide input and examples to address legal ambiguities, according to reporting from Bloomberg Law. They, along with other critics, have expressed concerns that the memo may prioritize protecting union activity over enforcing anti-discrimination statutes.