Hate Speech as Protected Conduct: Reworking the Approach to Offensive Speech under the NLRA

• Author: Carly Thelen
• Position: J.D. Candidate, The University of Iowa College of Law, 2019. B.S.B.A., 2015, Creighton University
• Pages: 985-1015

Hate Speech as Protected Conduct: Reworking the Approach to Offensive Speech under the NLRA Carly Thelen * ABSTRACT: Section 7 of the National Labor Relations Act (“NLRA”) protects employees who engage in concerted activities for purposes of mutual aid and protection. The National Labor Relations Board (“the Board”) enforces section 7 by protecting employee speech when the speech is related to concerted activity. The Board, using a broad interpretation of section 7, has extended protection to offensive speech, even hate speech. This Note argues that this broad interpretation of section 7 to protect hate speech is contrary to public policy and does not properly account for employers’ interest in not being associated with employees who engage in hate speech. This Note further argues for a reworked approach to cases involving offensive speech. The reworked approach incorporates a categorization of the speech to determine the level of protection. This approach properly considers employers’ interests while maintaining the NLRA’s purpose—to prevent employer unfair labor practices. I. INTRODUCTION ............................................................................. 986 II. THE NLRA AND PROTECTED EMPLOYEE SPEECH ......................... 989 A. T HE T RADITIONAL E MPLOYMENT R ELATIONSHIP ..................... 989 B. C OMMON S TATUTORY R EMEDIES TO E MPLOYEE F REE S PEECH C LAIMS ....................................................................... 989 C. T HE NLRA AND I TS G ENERAL P ROTECTIONS ............................ 991 1. Employees’ Rights Under Section 7 ............................ 992 2. Enforcement Under Section 8 ..................................... 994 3. Unprotected Conduct Under Section 7 ...................... 994 D. T HE B OARD ’ S I NTERPRETATION OF P ROTECTED S PEECH ............ 995 1. The General Framework for Evaluating Whether Offensive Speech is Protected ...................................... 996 * J.D. Candidate, The University of Iowa College of Law, 2019. B.S.B.A., 2015, Creighton University. 986 IOWA LAW REVIEW [Vol. 104:985 2. How the Board has Applied the Offensive Speech Framework in Cases Involving Hate Speech ................................................................... 998 III. THE HARMFUL EFFECTS OF RETAINING EMPLOYEES WHO ENGAGE IN HATE SPEECH ........................................................... 1000 A. A H OSTILE W ORK E NVIRONMENT S TIFLES E MPLOYEES AND D AMAGES W ORK M ORALE .............................................. 1001 B. F AILURE TO A CT A GAINST H ATE S PEECH D AMAGES C OMPANIES ’ R EPUTATIONS .................................................... 1003 C. C ONFLICTING D OCTRINES AND THE R ESULTING E MPLOYER E XPOSURE TO L ITIGATION R ISKS ........................... 1004 IV. THE CLASSIFICATION AND REBALANCING APPROACH ................. 1006 A. T HE R EWORKED B ALANCING T EST A PPLIED TO P ROTECTED H ATE S PEECH ..................................................... 1007 1. Using Categorizations to Determine Level of Protection ................................................................ 1007 2. The Picket Line vs. the Work Line: Setting Matters but is No Longer Dispositive ......................... 1009 3. Accounting for Employers’ Interests ......................... 1010 4. Final Balancing Act: “Nature of the Outburst” Weighed Against Other Factors ................................. 1010 B. T HE B ALANCING A CT IN P RACTICE ........................................ 1011 1. Rebalancing with Proper Consideration for Category of the Speech ............................................... 1011 2. Predicting Outcomes of Contemporary News Events ........................................................................... 1012 V. CONCLUSION .............................................................................. 1015 I. INTRODUCTION Recent political and ideological division within the United States has renewed the debate about an employee’s freedom to express political beliefs. 1 Particularly in wake of the resurgence of the white nationalism movement —most notably the rally in Charlottesville, where a counter-protester was killed 2 —there has been renewed debate about whether an employer can fire 1 . See David Smith, Divided States of America: 62% Say Trump is Driving People Apart, Poll Finds , GUARDIAN (Aug. 24, 2017, 11:00 AM), https://www.theguardian.com/us-news/2017/aug/24/ trump-approval-rating-division-poll (discussing American voters’ contrasting views on whether or not President Trump is bringing the nation together or polarizing the country). 2. Joe Heim, Recounting a Day of Rage, Hate, Violence and Death , WASH. POST (Aug. 14, 2017), https://www.washingtonpost.com/graphics/2017/local/charlottesville-timeline. 2019] OFFENSIVE SPEECH UNDER THE NLRA 987 an employee for his or her speech. 3 This question also permeated a recent controversy at Google, where an employee was fired after he disseminated a memo criticizing Google’s diversity initiatives. 4 In the memo, the employee stated that a gender disparity exists in tech jobs because of inherent psychological differences between men and women, notably men have a “higher drive for status.” 5 Arguably employers’ responses following both Charlottesville and the dissemination of the Google memo involve employers firing employees for engaging in hate speech—insults on the basis of race and gender, respectively. Generally, and for purposes of this Note, hate speech is defined as “speech that attacks, threatens, or insults a person or group on the basis of national origin, ethnicity, color, religion, gender, gender identity, sexual orientation, or disability.” 6 A clear moral argument exists that an employer should be able to fire an employee who engages in hate speech. However, beyond the moral question of whether an employer should fire an employee for their speech, employers should be aware of legal considerations that implicate this issue. 7 “There [is] no sweeping, catch-all rule that answers [the] question” 8 of whether an 3 . See, e.g. , Yoni Blumberg, Yes, Your Boss Can Fire You for Being a White Supremacist , CNBC (Aug. 16, 2017, 11:07 AM), https://www.cnbc.com/2017/08/16/yes-your-boss-can-fire-you-for-being-a-white-supremacist.html (discussing instances of workers being fired for political speech, including protest attendees); Mahita Gajanan, Can You Be Fired for Being a Racist? , TIME (Aug. 15, 2017), http://time.com/4901200/fired-racist-charlottesville-white-nationalism (describing firings after the Charlottesville rally as “an issue that has cropped up among employers multiple times this month”); Rebecca Greenfield, Can You Fire Someone for Being a White Supremacist? , BLOOMBERG (Aug. 21, 2017, 12:00 PM), https://www.bloomberg.com/news/articles/2017-08-21/can-you-fire-someone-for-being-a-white-supremacist (“It’s not entirely clear that employees will always be fired for being an after-hours Nazi.”); Gillian B. White, Is Being a White Supremacist Grounds for Firing? , ATLANTIC (Aug. 14, 2017), https://www.theatlantic.com/business/archive/2017/08/charlottesville-employment/536838 (“In many cases, firing someone for their political ideas raises few legal issues.”). 4. Louise Matsakis, Google Employee’s Anti-Diversity Manifesto Goes ‘Internally Viral , ’ MOTHERBOARD (Aug. 5, 2017, 1:01 AM), https://motherboard.vice.com/en_us/article/kzbm4a/ employees-anti-diversity-manifesto-goes-internally-viral-at-google. 5. JAMES DAMORE, GOOGLE’S IDEOLOGICAL ECHO CHAMBER: HOW BIAS CLOUDS OUR THINKING ABOUT DIVERSITY AND INCLUSION (2017), https://assets.documentcloud.org/documents/ 3914586/Googles-Ideological-Echo-Chamber.pdf (claiming women prefer more relationship-based careers, are more prone to anxiety than men, and look for work-life balance while men are more driven for success in their careers). 6 . Hate Speech , DICTIONARY.COM, http://www.dictionary.com/browse/hate-speech (last visited Sept. 26, 2018). For a discussion on the different definitions of hate speech, compare John T. Bennett, The Harm in Hate Speech: A Critique of the Empirical and Legal Bases of Hate Speech Regulation , 43 HASTINGS CONST. L.Q. 445, 450–55 (2016), with STEVEN J. HEYMAN, HATE SPEECH AND THE CONSTITUTION ix (1996) (defining hate speech as “expression that abuses or degrades others on account of their racial, ethnic, or religious identity”). 7. Jessica A. Clarke, Should Employers Fire Employees Who Attend White Supremacist Rallies? , HARV. BUS. REV. (Sept. 19, 2017), https://hbr.org/2017/09/should-employers-fire-employees-who-attend-white-supremacist-rallies. 8. David Yamada, Can an Employer Fire a Publicly-Avowed White Supremacist? , MINDING WORKPLACE (Aug. 14, 2017), https://newworkplace.wordpress.com/2017/08/13/can-an-employer-fire-a-publicly-avowed-white-supremacist. 988 IOWA LAW REVIEW [Vol. 104:985 employer can lawfully fire an employee for his or her speech, and it depends entirely on the facts and circumstances of each case. 9 One possible area for employee protection is the National Labor Relations Act (“NLRA”). In interpreting this Act, the National Labor Relations Board (“the Board”) has, on multiple occasions, protected hate speech because it determined the speech was non-threating and involved “concerted activities for the purpose of . . . mutual aid [and] protection”—explicitly protected under section seven of the NLRA. 10 This Note argues that the test the Board currently uses to evaluate the protection of offensive speech is overly broad and does not properly balance the interest of the employer in cases involving hate speech. Part II of this Note explores the background of section 7 of the NLRA and how the Board has applied this section to cases involving offensive and hateful speech. Part III argues that the Board’s current approach does not properly balance the employer’s interest or the speech’s harmful effects on the recipient in cases of hate speech. Part IV proposes a new balancing test that...