EEOC Informal Discussion Letter

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

Title VII and Other EEOC Enforced Laws: Harassment/Striking Employees/NLRA

September 11, 2015

Dear ___:

This is in response to your June 17 and August 7, 2015, letters to Peggy R. Mastroianni, Legal Counsel, U.S. Equal Employment Opportunity Commission ("EEOC" or "Commission"). 

In your letters, you request an official EEOC legal opinion (or the filing of an amicus brief) on the question of whether Title VII of the Civil Rights Act of 1964 (Title VII) and other EEOC-enforced laws ⁽¹⁾ conflict with the National Labor Relations Act (NLRA), specifically as the NLRA is construed in the decision issued by an administrative law judge in Cooper Tire and Rubber Co.⁽²⁾ and in the Board order in Consol. Commc'ns d/b/a Ill. Consol. Tel. Co.⁽³⁾ There, you state, the NLRA is construed to overturn employer discipline of striking workers who directed offensive picket-line comments at non-striking employees or replacement workers when they were entering or leaving the workplace.  You note that these offensive picket-line comments were based on the race or sex of the replacement workers and that the employer asserted that it disciplined the union members because of Title VII's mandate to prevent or correct a hostile work environment.  Both of your letters express the view that these employers are caught in a conflict between the NLRA and Title VII. 

The Commission has not considered this matter as your letters define it.  The relevant Title VII questions, which include union liability under Title VII, merit careful consideration.  We note, however, the Cooper Tire decision now pending before the Board, and the Consolidated Communications order now on appeal to the U.S. Court of Appeals for the District of Columbia Circuit, both of which were decided solely under the NLRA.⁽⁴⁾  We recognize the importance of this issue and appreciate your focusing our attention on it.

Please note that this letter is an informal discussion of the issues you raised and should not be considered an official opinion of the EEOC.  If you have further questions about this matter, feel free to contact me or Muslima Lewis, Attorney Advisor, by calling 202-579-6657.  Thank you for your inquiries.

Sincerely,

s/ Carol R. Miaskoff
Assistant Legal Counsel

FOOTNOTES:

1 The laws enforced by the EEOC prohibit harassment that results in a hostile work environment based on race, color, sex (including pregnancy), religion, national origin, age (40 or older), disability or genetic information.  See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. 621 et seq., the Americans with Disabilities Act, as amended by the Americans with Disabilities Act Amendments Act of 2008, Pub. L. No. 110–325, 122 Stat. 3553 (2008) (codified as amended in scattered sections of 42 U.S.C.), and the Genetic Information Nondiscrimination Act of 2008, Pub. L. 110-233, 122 Stat. 881, codified at 42 U.S.C. 2000ff et seq.

2 Case No. 08-CA-087155 (June 5, 2015); 2015 WL 3544120.

3 360 NLRB 140 (2014); 2014 WL 3051019.

4 These cases evaluate picket line activity and other conduct associated with a strike under a Board standard that is different from that for evaluating workplace activity or conduct.  See Airo Die Casting, Inc., 347 NLRB 810, 811 (2006) ("Unlike the issue involving an employee's conduct during his working environment, picket line misconduct is governed by the standard established in Clear Pine Moldings, 268 NLRB 1044 (1984), enfd., 765 F.2d 148 (9th Cir. 1985), cert. denied 474 U.S. 1105 (1968)).  According to the Clear Pine  test, an employer can lawfully deny reinstatement to a striker if his misconduct is such that under the circumstances, it may reasonably tend to coerce or intimidate employees in the rights protected under the Act."); see also Detroit Newspapers, 342 NLRB 223, 228 (2004) (The Board analyzes conduct by strikers away from the picket line under the same standard as it examines conduct that occurs on a picket line.).

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