Unequal Justice Under Law: NAM Files Brief Challenging NLRB’s Permissive Discrimination

On September 2, the Manufacturers’ Center for Legal Action filed an amicus brief in the U.S. Court of Appeals for the Eight Circuit challenging a National Labor Relations Board (NLRB) decision forcing Cooper Tire & Rubber Company (Cooper) to reinstate an employee who used racial epithets toward a replacement worker while the employee was on the picket line. The NLRB’s decision overturned an arbitration decision finding that Cooper dismissed its employee for good cause. This decision does not align with existing federal law, forces manufacturers to execute a policy that leaves them open to civil liability and requires businesses to tolerate behavior antithetical to American values.

The NLRB’s decision to reinstate an employee who used racist speech does not follow federal law by violating Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. These laws prohibit discrimination and harassment on grounds such as race and allow for an employer to fire an employee in violation. The work environment should encourage openness and understanding of all employee backgrounds. Forcing a company to condone racist behavior violates other workers’ rights to a hostile-free workplace. Ultimately, this decision by the NLRB significantly diminishes an employer’s ability to cultivate an inclusive work environment, which hurts workers, productivity and profit.

Not only does this decision negatively impact the working environment, but it also forces manufacturers to accept conduct, which leaves them open to liability. Under federal law, when a racial statement is made directly to an employee, an employer can be liable if it knows about the statement and fails to take proper action. If the NLRB’s erroneous decision is upheld, employers in many instances will be forced to allow discrimination to continue, instead of firing employees for racial harassment. This would, therefore, require employers to follow a pro-discriminatory policy, exposing them to possible litigation and allegations of cultivating a hostile workplace environment.

This NLRB decision challenges American progress on issues of race and diversity in both business and culture. Employers should not be required to condone racism in the workplace. We are hopeful that the Eighth Circuit will understand the importance of overturning this discriminatory NLRB decision, which not only negatively impacts the way we conduct business but also the way we conduct ourselves.

Patrick Forrest

Patrick Forrest

Vice President and Deputy General Counsel at National Association of Manufacturers
Patrick Forrest is the vice president and deputy general counsel for the National Association of Manufacturers (NAM). As part of the Manufacturers' Center for Legal Action, Forrest works to strengthen the NAM's ability to promote manufacturing policy objectives through litigation. Mr. Forrest's background includes legal, policy and government relations experience on a wide range of issues.
Patrick Forrest

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