Vice President, Employment Policy, U.S. Chamber of Commerce
November 20, 2023
On September 29, the Equal Employment Opportunity Commission (EEOC) released long-awaited proposed guidance on how employers should handle various types of harassment that can occur in the workplace. Despite 144 pages dealing with many current controversial issues, such when misuse of pronouns constitutes harassment or how employers should treat transgendered employees, the EEOC took a pass on a problem that could result in an employer having a union imposed on it without the benefit of a secret ballot election. The result is a lose-lose situation for employers that forces them to choose which federal statute to violate.
Under Title VII of the Civil Rights Act of 1964, the EEOC is the sole authority on how employers are to protect their employees from abusive and harassing behavior by other employees or supervisors. This is the basis for the guidance they issued.
Unfortunately, the National Labor Relations Board (NLRB) has now intruded on the EEOC’s domain under the guise of protecting employees’ rights to organize under Section 7 of the National Labor Relations Act. In a series of decisions, the NLRB has taken the position that employees who are engaged in a union organizing drive or discussing workplace issues with their colleagues or management have unlimited range to use objectively objectionable language and other harassing tactics that would otherwise be prohibited by Title VII. Furthermore, if an employer decides to protect their employees from such behavior by disciplining or dismissing an employee, the NLRB will consider that an unfair labor practice (ULP). Under a case called Cemex, if the NLRB finds an employer has committed a ULP during an organizing campaign, the employer can be forced to recognize a union using a card check process. Card check means that workers do not get the benefit of a secret ballot to vote on a union—instead they can be pressured into signing union cards.
The significance of this cannot be overstated. This conflict between the EEOC’s authority to advise employers on how to prevent workplace harassment and the NLRB’s approach to giving employees carte blanche to say or do whatever they want under the cover of union organizing cries out for the EEOC to reclaim its jurisdiction and restore employers’ ability to maintain a harassment-free workplace. Because the EEOC’s guidance is silent on this issue, the U.S. Chamber submitted comments to the EEOC calling out this problem and stressing that only the EEOC can decide how to protect employees from harassment, not the NLRB. EEOC passing on resolving this conflict, and not reclaiming their authority, means employers will face a Hobson’s choice: should they permit workplace harassment that would otherwise be banned, or should they protect employees and maintain a harassment-free workplace and accept the likelihood that the NLRB will impose a union favorable Cemex bargaining order? That choice is bad for employees and employers. Only the EEOC can straighten this out and demonstrate that Title VII shouldn’t take a back seat to Section 7.
About the authors
Marc Freedman is vice president of workplace policy at the U.S. Chamber of Commerce. He develops and advocates the Chamber’s response to OSHA matters; FLSA issues such as overtime, minimum wage, and independent contractors; paid leave issues; EEOC, and other labor and workplace issues.