The EEOC’s Civility Training Program – Watch Out For That NLRB Charge!

By Lindsay A. White - Shawe Rosenthal LLP

October 12, 2017

Last week, the Equal Employment Opportunity Commission (EEOC) announced it was offering a training program on respectful workplaces as an alternative to traditional harassment prevention training. This training was developed following the issuance of the Report of the Co-Chairs of the EEOC’s Select Task Force on the Study of Harassment in the Workplace, The press release included a quote from EEOC Acting Chair and Co-Chair of the Select Task Force Victoria Lipnic that stated, “These trainings incorporate the report’s recommendations on compliance, workplace civility, and bystander intervention training. I believe the trainings can have a real impact on workplace culture, and I hope employers make use of them.”

The other Co-Chair, Commissioner Feldblum, stated, “A strong training program is a critical piece of a holistic harassment prevention effort. We know that workplace incivility often acts as a ‘gateway drug’ to workplace harassment.”

Sounds great, right? Who wouldn’t like to prevent workplace conduct before it rises to actionable harassment?

The problem is that the National Labor Relations Board (NLRB) has expressly found that workplace civility policies are illegal. As we previously blogged, this is precisely the point we (under the umbrella of the Employment Law Alliance) raised in comments submitted in response to the EEOC’s proposed harassment guidance, which was released in January 2017 for public input before being finalized. It bears noting that the EEOC has not yet issued final guidance.

In the NLRB GC Memorandum 15-04, issued March 18, 2015, the NLRB’s General Counsel stated “[A]lthough employers have a legitimate and substantial interest in maintaining a harassment-free workplace, anti-harassment rules cannot be so broad that employees would reasonably read them as prohibiting vigorous debate or intemperate comments regarding Section 7-protected subjects.”  More specifically, the memo summarized various employer policies in handbooks that were found to violate employees’ Section 7 rights under the National Labor Relations Act to engage in concerted activity regarding the terms and conditions of their employment. These include:

• “Be respectful to the company, other employees, customers, partners, and competitors.”
• Do “not make fun of, denigrate, or defame your co-workers, customers, franchisees, suppliers, the Company, or our competitors.”
• “Be respectful of others and the Company.”Don’t pick fights online;
• Do not make “insulting, embarrassing, hurtful or abusive comments about other company employees online,” and “avoid the use of offensive, derogatory, or prejudicial comments.”;
• “[S]how proper consideration for others’ privacy and for topics that may be considered objectionable or inflammatory, such as politics and religion.”

In sum:  anything that could be deemed “uncivil.”

We note that this is just the latest in a series of flatly contrary positions being taken by various federal agencies in the Trump Administration on certain employment issues. As we discussed in a prior blog post, “The Government Seems Confused About Class Action Waivers,” the NLRB asserts that arbitration agreements containing waivers of the right to bring class or collective actions prevent employees from engaging in their Section 7 rights, while the Department of Justice (DOJ) specifically rejects the NLRB’s position. Similarly, as we discussed in our July E-Update, the EEOC contends that sexual orientation is covered by Title VII while the DOJ asserts that it is not. And also last week, the DOJ, through Attorney General Jeffrey Sessions, rejected the EEOC’s position that transgender status is covered by Title VII.

What does this mean for employers? Well, if you’re in compliance with the dictates of one agency, you may be in violation of another’s. Rock, meet hard place.