NLRB Issues Advice Memo Designating Workplace Discussions of Racism as Protected Activity

The National Labor Relations Board (NLRB) recently issued an advice memo confirming its earlier position that workplace discussions about racism are protected concerted activity under the National Labor Relations Act (NLRA). As a result, employers cannot fire, discipline, or take any adverse employment action against employees who publicly raise concerns about racism in the workplace.

Section 7 of the NLRA broadly establishes and protects the right of employees to engage in concerted activities for their mutual aid and protection. Concerted activities involve employees engaging in any activities designed to encourage group action.

In 2016, the NLRB issued a similar advice memo, concluding that employees are engaged in protected concerted activity when discussing their employer’s allegedly discriminatory practices with their co-workers. The NLRB reasoned that employee discussions about the employer’s perceived racism are inherently concerted because they implicate various terms and conditions of employment and constitute a matter of critical importance to employees.

The 2023 NLRB memo outlines a case involving a former professor for the Kaiser Permanente Bernard J. Tyson School of Medicine in Pasadena, CA. After police shot a Black man near campus in 2020, just a few months after George Floyd’s death at the hands of police in Minneapolis, the dean of the school sent an email to staff and students regarding the incident. The former professor and some of her colleagues felt that the dean’s email exhibited implicit racial bias. After that, the school instructed professors to discuss power structures and institutionalized racism that cause gender and racial bias in medicine.

The school suspended the professor and ultimately did not renew the professor’s contract in 2021 after she facilitated a discussion in the classroom about “representation in medicine, the history of race and gender discrimination in the medical field, and how racial bias causes poor health outcomes.” She also allowed the students to discuss the dean’s email. A co-worker in the classroom at the time of the discussion complained to supervisors.

The school claimed that it did not renew the former professor’s contract due to poor performance and behavior issues, but the NLRB found the school’s claims to be pretextual or based on false reasoning. The NLRB ruled that the professor’s class discussions on race constituted protected concerted activity, as they sought to improve the terms and conditions of employment and concerned the protection of employees. Furthermore, the professor’s later comments on Twitter concerning her suspension were not mere complaints but calls for further action to fight for justice, which also constituted protected activities.

The former professor recently announced that she had settled her lawsuit with the school and would withdraw her charge before the NLRB.

In response to the NLRB decision, employers should remember that while conducting employment activities, such as hiring and firing, per Title VII of the Civil Rights Act, they must also be mindful of the NLRA. They cannot solely analyze issues involving racial issues from the perspective of the Civil Rights Act but also must ask whether protected concerted activity as defined under the NLRA is involved. The U.S. Employment Opportunity Commission (EEOC) can refer cases to the NLRB and vice versa, which means that an employer can face scrutiny by two federal agencies in cases involving employment action over race-related incidents.

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