NLRB Advises That Workplace Discussions of Racism are Protected Concerted Activity Under NLRA
This alert was originally published by Phelps on March 2, 2023 and was expanded for additional publication by Law360 under the title Memo Shows NLRB Intends To Protect Race Talk At Work.
The federal agency that enforces U.S. labor law has put employers on notice that retaliating against employees having workplace discussions about racism will constitute an actionable unfair labor practice under the National Labor Relations Act, even for nonunion employers.
This significant development as to the enforcement scope of the National Labor Relations Board coincides with a joint initiative between the NLRB and the U.S. Equal Employment Opportunity Commission, the federal agency formally tasked with enforcing laws against race discrimination
What this means for employers is that workplace racial issues are now on the radar of two federal agencies, each with its own ability to take legal action.
The guidance comes from a previously confidential internal 2021 advice memorandum from the NLRB's Office of the General Counsel, which was only publicly released on Feb. 27.[1] The purpose of an advice memorandum is to offer the NLRB's regional offices guidance on unusual or complex factual scenarios. Advice memoranda are typically not disclosed, if ever, until the underlying case has been resolved.
The matter detailed in the newly released memo involved an unfair labor practice charge brought by physician Aysha Khoury, who was hired in 2019 as a faculty member at the Kaiser Permanente Bernard J. Tyson School of Medicine in Pasadena, California. In the wake of publicized police shootings of Black people in 2020, Khoury engaged in group classroom discussions with students and fellow faculty members about issues of racial representation and racial bias in the medical field.
Also discussed in the meeting was an email that the medical school's dean had sent out to faculty, staff and students concerning the recent police shooting of a Black man that had occurred near the medical school's campus, which members of the group considered to be "triggering, tone deaf and showed the Dean's implicit racial bias."
According to the NLRB memo, during the group discussion, Khoury wore a T-shirt reading "I can't breathe," a reference to words spoken by Eric Garner and George Floyd prior to their deaths in police custody. Khoury also recommended students read Robin DiAngelo's book "White Fragility: Why It's So Hard for White People To Talk About Racism."
It was reported that during the group discussions, some students became emotional and upset. At one point, another medical school employee in the classroom interrupted the discussion, told Khoury the discussion was inappropriate and subsequently reported what had been discussed to the medical school's leadership team.
Shortly afterward, Khoury was notified by the medical school that her teaching privileges had been revoked pending an investigation, and her classes were taught by a white male instructor. Khoury was later reinstated as a clinical physician, but following her subsequent Twitter posts about the situation, she was informed that her contract would not be renewed. She subsequently filed an unfair labor practice charge with the NLRB.
In finding the medical school retaliated against Khoury in violation of Section 8(a)1) of the NLRA, the NLRB's memo stated:
We conclude that the Employer violated Section 8(a)(1) because the Charging Party's classroom discussion about issues of race faced by Black faculty and students, as well as systemic racism in medicine, was inherently concerted and was for mutual aid or protection. Further, the Charging Party's tweets were protected concerted activity because they discussed terms and conditions of employment regarding racial disparities in medicine faced by medical professionals, sought the assistance of others to improve working conditions in medicine, and encouraged others to fight for racial equality and justice in the workplace. These tweets were also the logical outgrowth of the classroom discussion. The above protected concerted activity was a substantial and motivating factor that led the Employer to suspend and ultimately terminate the Charging Party.
Concerted activity for the benefit of all employees under the NLRA frequently deals with employee discussions regarding such basic issues as wages, benefits or work schedules that "seek to initiate, induce or prepare for group action, or statements directed toward management communicating a truly group complaint."
In this instance, the NLRB noted that
because working to end systemic racism, including its impact at the Employer, inures to the benefit of all employees, the discussion [and tweets] was for mutual aid or protection.
The NLRB noted that Khoury's actions need not have explicitly called for group action to constitute concerted activity as long as it could be inferred under the NLRB's inherently concerted doctrine.
After her termination, Khoury dual-filed a charge of discrimination with the State of California's Department of Fair Employment and Housing and the EEOC. She subsequently filed a 2021 lawsuit in the Los Angeles County Superior Court alleging discrimination, harassment and retaliation on the basis of her race and gender as well as a claim of wrongful discharge.
The parties later settled all claims in January 2023, in advance of a March 2023 trial date. Khoury is currently a faculty member at Morehouse School of Medicine in Atlanta.
So why is the NLRB, which is tasked with union and labor issues, staking out a position in the EEOC's territory of addressing racial bias in the workplace?
Back in 2021, the NLRB, the EEOC and the U.S. Department of Labor announced a joint initiative to raise awareness about retaliation issues when workers exercise their protected labor rights.[2]
While the joint initiative's stated intention was to educate the public and engage with the business community, a key component included direct collaboration between the agencies as to retaliation claims on the basis of protected activity, whether under the NLRA or Title VII of the Civil Rights Act.
At the time of the announcement of the joint initiative, NLRB General Counsel Jennifer Abruzzo noted,
These issues cut across multiple worker protection agencies, which is why it is so important to work collaboratively to effectively prevent and forcefully address retaliatory acts against workers.
The public release of the memo, nearly a year and a half after its internal issuance, seems intended as notice to employers of the NLRB's extending its enforcement authority and its inclusion of discussions about racial discrimination as a basis for what constitutes protected concerted activity under Section 7 of the NLRA.
This step is also in accord with the NLRB's efforts in recent years against Amazon-owned grocery store Whole Foods, in which the federal agency claimed the store violated the NLRA by barring employees from wearing Black Lives Matter messages on their clothing or face masks while on-duty. The NLRB's director of Region 20 issued a consolidated complaint against the grocery chain covering alleged violations in ten different states.[3]
These views are novel, and it remains to be seen how they will fare long-term under judicial scrutiny.
In Kinzer v. Whole Foods Market Inc., a judge in the U.S. District Court for the District of Massachusetts ruled in January favor of Whole Foods, finding that the grocery store's dress code policy of prohibiting the wearing of any noncompany logos or slogans, including those of Black Lives Matter, was not discriminatory or retaliatory.[4] A notice of appeal to the U.S. Court of Appeals for the First Circuit has been filed by the plaintiffs in that case.
What this all now means for employers is that in any instance where issues of race arise in the workplace, companies should no longer limit their assessment to Title VII or other equal opportunity laws when considering if there was a legitimate nondiscriminatory reason for any adverse employment action, but also analyze the circumstances to determine if protected concerted activity is also involved under the NLRA.
Contrary to some regular misconceptions, U.S. labor law applies to most private-sector employers, whether they actually have a union or not. Failure of employers and human resource professionals to adjust to this new expanded reach of the NLRB could result in scrutiny and potential litigation from two increasingly aggressive federal agencies.
Please contact Mark Fijman or any member of Phelps’ Labor and Employment team if you have questions or need compliance advice or guidance.
[1] NLRB Advice Memorandum, Case 21-CA-273372 (Oct. 19, 2021), https://www.nlrb.gov/guidance/memos-research/advice-memos/recently-released- advice-memos.
[4] See Kinzer et al. v. Whole Foods Market Inc. 2023 WL 363586 (D. Mass. Jan. 23, 2023).
