Harmonization of the NLRA and EEO Laws

OFFICE OF THE GENERAL COUNSEL

MEMORANDUM GC 25-04

January 16, 2025

TO:

All Regional Directors, Officers-in-Charge,

and Resident Officers

FROM:

Jennifer A. Abruzzo, General Counsel

SUBJECT:

Harmonization of the NLRA and EEO Laws

I am issuing this memorandum in response to questions I have received from some

stakeholders who have sought guidance on how to address simultaneously the

requirements of the National Labor Relations Act (NLRA) and the Federal Equal

Employment Opportunity Laws (EEO laws). This memo emphasizes the importance of

complying with all requirements of the NLRA and the EEO laws and offers suggestions in

certain key areas on how to effectuate compliance and ensure that employees receive

full protections under the laws.

Broadly speaking, the NLRA empowers employees to have a voice in the workplace by

guaranteeing them the right to act together to improve terms and conditions of

employment through engaging in union and/or protected concerted activities. The EEO

laws, such as Title VII, the Age Discrimination in Employment Act, and the Americans

with Disabilities Act, among others, ensure that employees do not suffer discrimination in

working conditions or face workplace harassment because of their protected

characteristics, such as race or sex. These bodies of law often work independently of

each other, though workplace situations do arise that implicate both.

As the General Counsel of the National Labor Relations Board (NLRB), I am committed

to fully enforcing the NLRA in order to protect workers’ statutory rights, to promoting fair

and just workplaces, and to ensuring that our Agency functions effectively and

harmoniously with the Equal Employment Opportunity Commission (EEOC). As to the

latter, I note that the laws that the NLRB and EEOC are charged to enforce can and must

both be given effect without doing damage to either

ed

to fully enforcing the NLRA in order to protect workers’ statutory rights, to promoting fair

and just workplaces, and to ensuring that our Agency functions effectively and

harmoniously with the Equal Employment Opportunity Commission (EEOC). As to the

latter, I note that the laws that the NLRB and EEOC are charged to enforce can and must

both be given effect without doing damage to either. In workplaces across the country,

the NLRA and the EEO laws routinely operate in harmony, often in furtherance of shared

goals and with reliance on shared principles. Such harmonization is possible because

neither body of law sets forth absolutes in areas of potential overlap. Each leaves space

for the other to operate. Regulated parties thus can and must understand and comply

with both sets of laws. Importantly, they should not purport to invoke their obligations

under one to avoid their responsibilities under the other.

Consistent with that understanding, in this memorandum, I share respective missions,

emphasize the many ways in which I believe the NLRA and the EEO laws work together

Rescinded 2/14/2025 by Memorandum GC 25-05

2

both doctrinally and practically, address key areas most often shared as sources of

purported conflict, and offer suggestions on addressing perceived tensions. Of course,

individual cases will continue to be evaluated on the particular facts presented.

I.

The NLRA and the EEO Laws Further Similar Goals and Rely on Similar

Principles

The NLRA and the EEO laws share many similar principles and goals. Identifying those

shared aspects helps pave the way towards a better understanding of how they can both

be successfully given effect.

Underlying both bodies of law is a commitment to dignity in the workplace. A key

component of that mission is furthering anti-discrimination principles

oals and Rely on Similar

Principles

The NLRA and the EEO laws share many similar principles and goals. Identifying those

shared aspects helps pave the way towards a better understanding of how they can both

be successfully given effect.

Underlying both bodies of law is a commitment to dignity in the workplace. A key

component of that mission is furthering anti-discrimination principles. I firmly believe that

both bodies of law remove obstacles to the full participation of employees in the workforce

by prohibiting employers from targeting them for adverse treatment based on statutorily

protected characteristics or actions.

The NLRA includes a guarantee that employees have the right “to engage in … concerted

activities for the purpose of collective bargaining or other mutual aid or protection.”1 It

ensures their ability to speak and act together, to help and protect each other, in their

working lives. To safeguard that right, the NLRA prohibits employers from taking actions

that “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed”

by the statute.2 It also forbids “discrimination in regard to hire or tenure of employment

or any term or condition of employment to encourage or discourage membership in any

labor organization.”3

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis

of race, color, religion, sex, or national origin.4 That prohibition encompasses harassment

based on those characteristics that “has created a hostile or abusive work environment.”5

Similar bans on discrimination and harassment exist under the Age Discrimination in

Employment Act and the Americans with Disabilities Act, as well as the other EEO laws.

Both the NLRA and the EEO laws also include anti-retaliation protections for employees

who invoke the procedures for effectuating each law’s substantive guarantees

that “has created a hostile or abusive work environment.”5

Similar bans on discrimination and harassment exist under the Age Discrimination in

Employment Act and the Americans with Disabilities Act, as well as the other EEO laws.

Both the NLRA and the EEO laws also include anti-retaliation protections for employees

who invoke the procedures for effectuating each law’s substantive guarantees.

Employers violate the NLRA when they “discriminate against an employee because he

has filed charges or given testimony” with the NLRB or otherwise participated in NLRB

processes.6 Similarly, Title VII prohibits employers from retaliating against employees

1 29 U.S.C. § 157.

2 29 U.S.C. § 158(a)(1).

3 29 U.S.C. § 158(a)(3).

4 42 U.S.C. § 2000e-2(a).

5 Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986).

6 29 U.S.C. § 158(a)(4).

3

because they have “opposed any practice made an unlawful employment practice” under

that statute or because they have “made a charge, testified, assisted, or participated in

any manner in an investigation, proceeding, or hearing” related to discrimination or

harassment.7 The other EEO laws contain similar prohibitions on retaliation.

In addition, the NLRA and the EEO laws share a similar set of tools for serving their

statutory missions. When evaluating whether employer actions were unlawfully motivated

by protected concerted activity (under the NLRA) or by protected characteristics (under

the EEO laws), they rely on similar analytical concepts. In cases involving discipline, both

bodies of law look to whether the employer’s actions reflect consistency and

proportionality. For example, they consider disparate treatment of similarly situated

employees as evidence of unlawful motive. They examine whether the reasons given

for an adverse action are pretextual, such that the employer’s proffered rationale was not

actually relied on

In cases involving discipline, both

bodies of law look to whether the employer’s actions reflect consistency and

proportionality. For example, they consider disparate treatment of similarly situated

employees as evidence of unlawful motive. They examine whether the reasons given

for an adverse action are pretextual, such that the employer’s proffered rationale was not

actually relied on. By contrast, under either body of law, evidence showing that an

employer consistently applies established policies can weigh against finding a violation.

Along with their conceptual similarities, the NLRA and the EEO laws work in tandem in

practice. Employees engage in NLRA-protected activity when they band together to

challenge discrimination or harassment in the workplace.8 EEO goals are also advanced

by the NLRA’s protection of employees’ right to discuss terms and conditions of

employment with each other or with third parties.9 Through those NLRA-protected

conversations, a victim of discrimination or harassment can learn whether co-workers

have suffered the same harm, which may set the groundwork for future joint action to

address the EEO violations. Employees could work together to raise the issue with

management, alert the public, and/or file a charge with the EEOC—all of which would be

protected activity under the NLRA.10 Further, the same actions that constitute protected

concerted activity under the NLRA may qualify as protected opposition or participation

under the EEO laws. Robust protection of NLRA rights thus can further EEO goals as

well as NLRA goals.

II.

Both the NLRA and the EEO Laws Can and Should Be Given Effect

Despite those broad areas of similarity and complement, as noted previously, some

stakeholders have shared concerns about perceived tensions between the NLRA and the

EEO laws. As explained below, any possible tensions are less stark than commonly

believed and they diminish greatly upon a closer look at the specifics of the two bodies of

law

and the EEO Laws Can and Should Be Given Effect

Despite those broad areas of similarity and complement, as noted previously, some

stakeholders have shared concerns about perceived tensions between the NLRA and the

EEO laws. As explained below, any possible tensions are less stark than commonly

believed and they diminish greatly upon a closer look at the specifics of the two bodies of

law. To that end, I will address three key areas most often identified as sources of

purported conflict—workplace civility rules, investigative confidentiality policies, and

7 42 U.S.C. § 2000e-3(a).

8 See, e.g., Nestle USA, Inc., 370 NLRB No. 53, slip op. at 11 (2020); Fresh & Easy Neighborhood Market, Inc.,

361 NLRB 151, 153 (2014).

9 See, e.g., Kinder-Care Learning Ctrs., Inc., 299 NLRB 1171, 1171-72 (1990).

10 See, e.g., N.C. Prisoner Legal Servs., Inc., 351 NLRB 464, 467 (2007).

4

employee speech or conduct in the context of NLRA-protected activity that could

potentially implicate federal EEO law. For each area, the interests implicated under both

the NLRA and the EEO laws are described, and suggestions to serve both sets of

interests are offered.

A.

Workplace Civility Rules

The first area that some stakeholders have raised involves employer-imposed workplace

rules prohibiting harassment and promoting civility. Carefully crafted, such rules can

further both NLRA and EEO goals.

First and foremost, I emphasize that workplace civility rules are completely distinct from

workplace anti-harassment policies. Specifically, workplace anti-harassment policies are

employer rules or policies that prohibit employees from engaging in harassing conduct on

the basis of an EEO-protected characteristic. The purpose of anti-harassment policies is

not to create a courteous environment like civility rules, but rather to prevent and address

an unlawful hostile work environment under the EEO laws

ment policies. Specifically, workplace anti-harassment policies are

employer rules or policies that prohibit employees from engaging in harassing conduct on

the basis of an EEO-protected characteristic. The purpose of anti-harassment policies is

not to create a courteous environment like civility rules, but rather to prevent and address

an unlawful hostile work environment under the EEO laws. These policies are important

for employers who seek to establish workplaces devoid of unlawful harassment, as well

as those who wish to avail themselves of an affirmative defense to liability, or limitation

on damages, under the EEO laws. Thus, an employer can avoid implicating potential

EEO and NLRA concerns by maintaining and consistently enforcing an EEO anti-

harassment policy or rule that specifically prohibits harassment based on EEO-protected

characteristics. Such policies would not raise NLRA concerns.

In contrast, workplace civility rules are rules that require employees to observe certain

standards of workplace behavior or conform to a certain level of conduct. Specifically,

they often regulate or prohibit behavior that does not necessarily contribute to or rise to

the level of unlawful harassment under the EEO laws. For example, civility rules may

prohibit conduct that is either insufficiently severe or pervasive to be considered unlawful

harassment under the EEO laws or even is entirely unrelated to an EEO-protected basis.

To determine whether maintenance of a workplace rule, including a civility rule, violates

the NLRA, the NLRB uses an objective standard assessing whether a rule has a

reasonable tendency to chill employees from exercising their Section 7 rights.11 This

standard does not depend on the employer’s intent in promulgating the rule or whether it

actually dissuades any employees from engaging in NLRA-protected activity

maintenance of a workplace rule, including a civility rule, violates

the NLRA, the NLRB uses an objective standard assessing whether a rule has a

reasonable tendency to chill employees from exercising their Section 7 rights.11 This

standard does not depend on the employer’s intent in promulgating the rule or whether it

actually dissuades any employees from engaging in NLRA-protected activity. Rather, the

NLRB evaluates rules from the perspective of a reasonable employee, who is

economically dependent on the employer, and who contemplates engaging in NLRA-

protected activity.12 It recognizes that the typical employee reads work rules like a

layperson, not a legal expert.13 If an employee could reasonably interpret the rule to

restrict or prohibit Section 7 activity, the rule is presumptively unlawful. The employer

11 Stericycle, Inc., 372 NLRB No. 113, slip op. at 2 (2023).

12 Id.

13 Id. at 9.

5

may rebut the presumption by showing that the rule advances a legitimate and substantial

business interest that cannot be advanced with a more narrowly tailored rule.14

Civility rules that are too vague or overly broad risk curtailing employee rights and

protections afforded by the NLRA by interfering with workers’ ability to advocate for better

working conditions.15 Because collective action to improve terms and conditions may be

adversarial in nature, it can lead to heightened tensions and heated disputes among both

employees and employer representatives and agents. We have seen cases where

employees who complain about or challenge their working conditions have lawfully

introduced a degree of conflict to the workplace. Employees have the right under the

NLRA to criticize their employer, whether to fellow employees, the public, or government

agencies like the NLRB

tensions and heated disputes among both

employees and employer representatives and agents. We have seen cases where

employees who complain about or challenge their working conditions have lawfully

introduced a degree of conflict to the workplace. Employees have the right under the

NLRA to criticize their employer, whether to fellow employees, the public, or government

agencies like the NLRB.

When employees reasonably could view broadly worded rules requiring workplace civility

to prevent them from engaging in NLRA-protected activity, such rules may run afoul of

the NLRA’s prohibition on employer actions that interfere with, restrain, or coerce

employees in the exercise of their NLRA rights, including by chilling employees from

engaging in protected concerted activity at all for fear of retaliation or discipline. In other

words, faced with a broad civility rule, employees are likely to take a cautious approach

rather than risk violating the rule and be subject to adverse consequences to their

livelihood. Moreover, in addition to the chilling effect of overbroad or ambiguous civility

rules, employers have used such rules as pretext for prohibiting NLRA-protected activity

or disciplining employees who engaged in such activity.

Such rules also could dissuade employees from filing charges with or otherwise assisting

the NLRB, out of fear that doing so would constitute the type of conflict or negativity

prohibited by the rule. Because the NLRB cannot institute proceedings on its own, the

effect of such hesitation would be that unfair labor practices could go unaddressed and

unremedied.

Overbroad rules also can undermine the concerted efforts of employees to promote EEO

goals. Banding together to challenge sexual or racial harassment by other employees or

supervisors, for instance, is not necessarily a civil exercise, particularly when considering

the power dynamics often at play in those situations

would be that unfair labor practices could go unaddressed and

unremedied.

Overbroad rules also can undermine the concerted efforts of employees to promote EEO

goals. Banding together to challenge sexual or racial harassment by other employees or

supervisors, for instance, is not necessarily a civil exercise, particularly when considering

the power dynamics often at play in those situations. Employees fearful of violating

broadly worded civility rules thus may feel compelled to remain quiet about such

harassment, which results in the perpetuation of the existing hostile work environment.

In sum, workplace rules that are narrowly tailored, focused, and precise are most likely to

further both NLRA and EEO goals. For example, a rule that specifically prohibits

harassment based on EEO-protected characteristics would not raise any concerns under

the NLRA. Employers and employees alike could benefit from standalone rules of this

nature, disambiguated from broader rules regarding respect or civility in the workplace.

Any broader rule is best positioned to avoid conflicting with the NLRA if it is defined and

14 Id. at 2.

15 The Board has described an overbroad rule as a rule that “could be narrowed to lessen the infringement of

employees’ statutory rights while still advancing the employer’s interest.” Id. at 14.

6

specific, with examples of the types of language and conduct it does and does not cover,

and includes assurances, proximate to the rule itself, that the rule does not limit

employees’ ability to communicate with each other, third parties, or their employer about

their terms and conditions of employment, to make comments critical of their employer,

or otherwise to engage in NLRA-protected activity. The objective is to head off truly

abusive or harassing behavior based on protected characteristics while leaving space for

vigorous exercise of protected concerted activity for mutual aid or protection. This goal

can and should be met.

B

loyer about

their terms and conditions of employment, to make comments critical of their employer,

or otherwise to engage in NLRA-protected activity. The objective is to head off truly

abusive or harassing behavior based on protected characteristics while leaving space for

vigorous exercise of protected concerted activity for mutual aid or protection. This goal

can and should be met.

B.

Investigative Confidentiality

A second area of purported conflict is the extent to which employers can require

confidentiality in the context of workplace investigations into alleged harassment based

on EEO-protected characteristics. As an initial matter, any overlap between the two

bodies of law regarding investigative confidentiality is limited to those situations and does

not extend to other types of investigations. Even in that context, investigative

confidentiality rules are neither always required for EEO purposes nor always prohibited

by the NLRA. In this area, too, room exists for both bodies of law to be enforced in a

complementary manner.

1.

NLRA and EEO Interests Regarding Investigative

Confidentiality

Employees have the right under the NLRA to discuss terms and conditions of employment

with their coworkers. The NLRA also protects employee communications regarding such

issues with third parties, such as unions, government agencies like the NLRB or EEOC,

the media, or the public.16 Employees are not limited to addressing work-related

complaints solely with their employer.

The right to discuss terms and conditions of employment encompasses discussion of

workplace investigations

eir coworkers. The NLRA also protects employee communications regarding such

issues with third parties, such as unions, government agencies like the NLRB or EEOC,

the media, or the public.16 Employees are not limited to addressing work-related

complaints solely with their employer.

The right to discuss terms and conditions of employment encompasses discussion of

workplace investigations. In that context, such protected communications can include

discussions of the discipline threatened or imposed as a result of the investigation, the

fairness or effectiveness of the investigation, and the underlying subject of the

investigation.17 Both reporting and accused employees engage in NLRA-protected

activity when they seek support from fellow employees, such as by soliciting coworkers

to provide information or serve as witnesses. The subject of an investigation who feels

the employer is unfairly targeting her (perhaps in retaliation for NLRA-protected activity)

or the complainant who believes the employer is not doing enough to investigate or

resolve a complaint likewise have the right to ask for help from third parties.

Broadly and generally worded investigative-confidentiality rules interfere with that right,

and thus can violate the NLRA. For example, rules that preclude any communication

about the allegations and investigation or that are applicable to any employee—victim,

16 See, e.g., Kinder-Care Learning Ctrs., Inc., 299 NLRB 1171, 1171-72 (1990).

17 Inova Health Sys., 360 NLRB 1223, 1228 (2014), enforced, 795 F.3d 68 (D.C. Cir. 2015).

-confidentiality rules interfere with that right,

and thus can violate the NLRA. For example, rules that preclude any communication

about the allegations and investigation or that are applicable to any employee—victim,

16 See, e.g., Kinder-Care Learning Ctrs., Inc., 299 NLRB 1171, 1171-72 (1990).

17 Inova Health Sys., 360 NLRB 1223, 1228 (2014), enforced, 795 F.3d 68 (D.C. Cir. 2015).

7

witness or third party—could be problematic for a number of reasons. Specifically,

mandating confidentiality requirements on employees, particularly those who made the

report that initiated an internal investigation, may improperly restrict employees from

exercising their rights or engaging in protected activity under the NLRA or the EEO laws.

Maintenance of such rules can cause employees to think twice before exercising their

rights or convince them not to exercise those rights at all. The right to communicate is a

core component of Section 7, and limits on that right would prevent employees who are

under investigation, initiated an investigation, or are otherwise involved with an

investigation from learning about and providing support to other employees who are in a

similar situation. It also would interfere with employees’ Section 7 right to raise concerns

regarding matters related to the investigation with third parties like the media or the public.

Similarly, enforcement of overly broad confidentiality rules against employees who have

exercised their NLRA right to communicate can constitute unlawful retaliation.

Overbroad investigative-confidentiality rules also could dissuade employees from

reporting unlawful conduct to the NLRB for fear of violating their employer’s instruction to

keep the matter confidential. Because the NLRB depends on private parties to initiate

unfair-labor-practice proceedings, that restraint would inhibit the Board from investigating

any matter that is the subject of or otherwise related to an employer’s investigation

es also could dissuade employees from

reporting unlawful conduct to the NLRB for fear of violating their employer’s instruction to

keep the matter confidential. Because the NLRB depends on private parties to initiate

unfair-labor-practice proceedings, that restraint would inhibit the Board from investigating

any matter that is the subject of or otherwise related to an employer’s investigation. In

unionized workplaces, such rules also have the potential to interfere with employees

bringing complaints that are the subject of or are related to an employer investigation to

their union in order to get help in seeking redress from their employer. They also can

dissuade employees from utilizing the contractual grievance machinery for handling

workplace disputes.

I recognize that employer efforts to comply with their EEO obligations may include

maintaining robust reporting systems for allegations of discrimination or harassment, and

fair and effective processes for investigating such complaints, and that important to the

success of such systems is ensuring that employees who suffer or witness harassment

are not discouraged from coming forward out of privacy concerns or for fear of

retaliation.18 However, I believe employer investigations can and should be structured to

satisfy both sets of interests.

2.

Crafting Investigations to Satisfy Both the NLRA and the EEO

Laws

As with the other areas of potential overlap discussed above, neither the NLRA nor the

EEO laws impose absolutes in the area of investigative confidentiality. Rather,

confidentiality is a means to the end of fair and accurate investigations, not a standalone

requirement or goal in and of itself under EEO laws.

As noted, I recognize that, in some cases, confidentiality may serve as a key component

of an employer’s anti-harassment policy or investigation. Employers may have goals of

18 Faragher v. City of Boca Raton, 524 U.S. 775, 806-07 (1998).

er,

confidentiality is a means to the end of fair and accurate investigations, not a standalone

requirement or goal in and of itself under EEO laws.

As noted, I recognize that, in some cases, confidentiality may serve as a key component

of an employer’s anti-harassment policy or investigation. Employers may have goals of

18 Faragher v. City of Boca Raton, 524 U.S. 775, 806-07 (1998).

8

encouraging reports of harassment, protecting employee privacy, and promoting accurate

and fair investigations. However, they must avoid improperly restricting employees from

exercising their rights or engaging in protected activity. One way to do so is by

recognizing that these goals can be met through other means without imposing broad-

based confidentiality rules on employees.

As to encouraging reporting, any concern that employees will not come forward because

of fears of reprisal can be addressed by maintaining strong anti-retaliation policies and

ensuring that employees are aware of them. Rather than demand confidentiality, an

employer can advise interviewees of the specifics of its anti-retaliation policy and make

clear the steps that it will take should it determine that there has been retaliation, and thus

a violation of that policy. Similarly, the employer can provide the reporting employee with

assurances of protection against retaliation. It also should scrutinize its own actions and

ensure that employment decisions affecting the reporting employee or other interviewees

during and after the investigation are not based on retaliatory motives. Notably, the focus

on anti-retaliation is not just complementary with NLRA law. It also aligns with an

employer’s obligations under the EEO laws, as an employer can be liable for co-worker

retaliation that would dissuade an employee from making or supporting harassment

allegations if the employer tolerates or fails to take reasonable steps to address such

retaliation

on retaliatory motives. Notably, the focus

on anti-retaliation is not just complementary with NLRA law. It also aligns with an

employer’s obligations under the EEO laws, as an employer can be liable for co-worker

retaliation that would dissuade an employee from making or supporting harassment

allegations if the employer tolerates or fails to take reasonable steps to address such

retaliation.

As to protecting privacy, an employer itself can keep information it learns during the

investigation confidential to the extent possible. It can require confidentiality of any

supervisors or members of management interviewed as part of the investigation.

Supervisors and management are not typically covered by the NLRA, so confidentiality

rules binding them do not offend the NLRA. It can also assure a reporting employee that

it will share information with other interviewees only as needed to conduct an effective

investigation.

To the extent an employer maintains investigative-confidentiality rules for employees,

they can and should be carefully tailored. The NLRA does not prohibit all investigative-

confidentiality rules for employees. In certain circumstances, a rule that is found to have

a reasonable tendency to chill employees from exercising their Section 7 rights could be

lawful if the rule advances legitimate and substantial business interests that cannot be

achieved with a more narrowly tailored rule.19 In other words, employers have the

flexibility to request confidentiality in a tailored manner when it is truly needed, and

employees should retain their right to discuss workplace investigations when it is not.

Such principles are consistent with the confidentiality necessary for effective anti-

harassment investigations under the EEO laws.

Employers should consider the context of the particular investigation before requesting or

requiring confidentiality of employees. For example, an employer can consider whether

19 See Stericycle, slip op. at 2.

scuss workplace investigations when it is not.

Such principles are consistent with the confidentiality necessary for effective anti-

harassment investigations under the EEO laws.

Employers should consider the context of the particular investigation before requesting or

requiring confidentiality of employees. For example, an employer can consider whether

19 See Stericycle, slip op. at 2.

9

victims or witnesses need protection from continued harassment or discrimination;

whether there are objectively reasonable grounds for believing that evidence is at risk of

being destroyed or that interviewees are colluding to fabricate testimony; or whether

victims request confidentiality to protect against retaliation. As to the latter point, it can

take steps to honor a reporting employee’s own request for confidentiality, such that, if

the reporting employee’s identity comes to light in the course of interviewing other

witnesses, for example, the employer can ask the interviewees to keep that identity

confidential. There also may be a specific need for a stricter confidentiality rule in a

particular investigation if the nature of the allegations being investigated is highly sensitive

(e.g., an investigation of alleged sexual or racial assault).

If confidentiality in a particular investigation is truly needed, it is important for employers

investigating a discrimination or harassment complaint to clearly identify the scope of the

confidentiality requirement to interviewees, including the information and matters it covers

and how long it lasts, so that employees do not misunderstand the breadth of information

covered and the applicable length of time

ity in a particular investigation is truly needed, it is important for employers

investigating a discrimination or harassment complaint to clearly identify the scope of the

confidentiality requirement to interviewees, including the information and matters it covers

and how long it lasts, so that employees do not misunderstand the breadth of information

covered and the applicable length of time. Employers also may consider reminding

participants at multiple points in the process (when scheduling interviews, at the end of

interviews, and when finalizing statements/affidavits with witnesses) that their

participation in the investigation does not preclude them from: contacting or filing a charge

with the EEOC or NLRB; filing a lawsuit under the federal EEO laws; or seeking outside

legal or medical assistance (such as mental health treatment for emotional distress or

medical assistance for victims of sexual assault). Employers may also remind

participants that their participation in the investigation does not preclude them from

speaking with other employees, unions, government agencies, or third parties.

In addition to respecting employees’ NLRA right to communicate, an approach to

harassment investigations not centered solely or primarily on confidentiality can promote

the NLRA’s and the EEO laws’ shared interest in fair and accurate investigations and

protected activity under their respective statutes. Overly broad investigative-

confidentiality rules can compromise the efficacy or legitimacy of an investigation. A

victim or witness who wishes to retain the ability to discuss the matter may choose not to

participate in the employer’s internal reporting system or the investigation. Also,

employees bound to confidentiality would not be able to call out a deficient investigatory

process as not fair and accurate. Another benefit of a targeted approach to investigative

confidentiality is that it reflects the fact that not all confidentiality rules further EEO goals

to the same degree

oose not to

participate in the employer’s internal reporting system or the investigation. Also,

employees bound to confidentiality would not be able to call out a deficient investigatory

process as not fair and accurate. Another benefit of a targeted approach to investigative

confidentiality is that it reflects the fact that not all confidentiality rules further EEO goals

to the same degree. For instance, a rule requiring reporting employees to keep their own

harassment complaints confidential has no connection to the goal of encouraging

reporting.

Overbroad confidentiality rules also can interfere with the ultimate goal of investigations—

rooting out and combatting harassment. A victim of harassment who is interviewed as

part of an investigation into a different employee’s harassment claim would have difficulty

offering support and solidarity to, or seeking it from, the other employee. In cases where

multiple employees have reported harassment, such rules could prevent those

10

employees from learning about their shared harm. Those obstacles to sharing their

experiences interfere with employees’ ability to join together and mount a concerted

response to challenge the shared harassment or the workplace culture that enabled it.

And, broad investigative confidentiality rules even could dissuade employees from going

to the EEOC or the NLRB for fear of violating their employer’s instruction to keep the

matter confidential.

Finally, the EEO laws cannot reasonably be invoked to justify the maintenance of

investigative-confidentiality rules that apply across the board to all types of workplace

investigations. As noted above, EEO interests are implicated only in investigations that

involve harassment or discrimination. Relying on EEO obligations to maintain broader

investigative-confidentiality rules that apply outside of that context thus can create conflict

between the NLRA and the EEO laws where none would otherwise exist

les that apply across the board to all types of workplace

investigations. As noted above, EEO interests are implicated only in investigations that

involve harassment or discrimination. Relying on EEO obligations to maintain broader

investigative-confidentiality rules that apply outside of that context thus can create conflict

between the NLRA and the EEO laws where none would otherwise exist. Consistent with

the above discussion regarding civility rules, crafting investigative-confidentiality rules

that are narrowly tailored, focused, and precise, rather than ones that are overly broad in

scope, would minimize any potential conflict between the NLRA and the EEO laws.

C.

Employee Conduct in the Course of NLRA-Protected Activity

A third area where parties have sought guidance involves employee use of offensive

language or conduct implicating EEO-protected characteristics while engaged in NLRA-

protected activity, and what actions employers can take in response to avoid EEO liability

while not running afoul of the NLRA. Employers often express concern that imposing

disciplinary action for conduct that may constitute or contribute to a hostile work

environment under federal employment discrimination laws may pose NLRA liability risks,

while refraining from disciplinary action may pose liability risks under the EEO laws. Here,

too, the respective laws can operate harmoniously.

Employees may engage in a range of conduct or speech in connection with Section 7

activity under the NLRA, which sometimes includes the use of insults, obscenities, or

other vulgar language or mannerisms. Such employee conduct also sometimes

implicates federal employment discrimination laws and a hostile work environment if it is

related to an EEO-protected personal characteristic. While there may be tension between

these two areas of law, as explained below, employers may take steps to comply with

both their NLRA and EEO obligations

ults, obscenities, or

other vulgar language or mannerisms. Such employee conduct also sometimes

implicates federal employment discrimination laws and a hostile work environment if it is

related to an EEO-protected personal characteristic. While there may be tension between

these two areas of law, as explained below, employers may take steps to comply with

both their NLRA and EEO obligations.

Compliance with both the NLRA and the EEO laws in these situations requires

consideration of the employee’s conduct, the employer’s policies and practices, and the

employer’s response. Conduct that is not based on or motivated by a protected

characteristic typically would not implicate the EEO laws. However, offensive conduct by

employees in the course of Section 7 activity that does implicate those laws may warrant

disciplinary action, and employers may be able to act without violating either set of laws.

In determining whether to impose discipline, employers may consider the nature of the

conduct, including whether and in what manner EEO-protected characteristics are

implicated, as well as the context in which the discipline occurred, including whether the

11

disciplinary action is proportionate to the severity of the conduct and consistent with

employers’ lawful prior practices and applicable policies regarding the EEO laws. As

explained in greater detail below, employers that routinely and consistently engage in

preventive and corrective actions to comply with applicable legal standards under the

EEO laws and the NLRA may be better positioned to defend related disciplinary action.

1

severity of the conduct and consistent with

employers’ lawful prior practices and applicable policies regarding the EEO laws. As

explained in greater detail below, employers that routinely and consistently engage in

preventive and corrective actions to comply with applicable legal standards under the

EEO laws and the NLRA may be better positioned to defend related disciplinary action.

1.

Interaction of NLRA and Federal EEO Requirements

Under the EEO laws, for language or conduct to constitute unlawful harassment, it must

be sufficiently severe or pervasive to alter an employee’s working conditions and must be

both objectively and subjectively offensive.20 That determination is based on the totality

of the circumstances, including the frequency of the offensive conduct, whether it is

physically threatening, and the degree to which it interferes with an employee’s work

performance. Harris, 510 U.S. at 23. Other relevant factors include the identity of the

harasser, whether the conduct was directed at a particular individual, and who witnessed

the conduct.21 Whether an employer is liable for a hostile work environment depends on

the source of the harassment. Employers are vicariously liable for supervisor-based

harassment if it results in a tangible employment action or if the employer failed to

exercise reasonable care to prevent and correct the harassing behavior or the employee

did not unreasonably failed to avoid the harm.22 As to co-worker harassment, an

employer is liable for such harassment if it was negligent—that is, if it knew or should

have of known of the harassment and failed to act reasonably to address it.23

The NLRA prohibits employers from taking action against employees for engaging in

NLRA-protected activity, such as advocating for better working conditions or protesting

employer actions by striking or picketing

rassment, an

employer is liable for such harassment if it was negligent—that is, if it knew or should

have of known of the harassment and failed to act reasonably to address it.23

The NLRA prohibits employers from taking action against employees for engaging in

NLRA-protected activity, such as advocating for better working conditions or protesting

employer actions by striking or picketing. There is no requirement under the NLRA that

employees remain temperate or unemotional when exercising NLRA-protected rights.24

Discussions about crucial workplace concerns can engender passionate responses.

Employees must be able to engage with and seek support from one another to address

such concerns, and to confront their employer about them, without fear of reprisal even if

those conversations at times get heated. When such discussions occur in the bargaining

context, employees must feel comfortable expressing their views without fear of employer

retaliation, as one goal of the NLRA is equalizing bargaining power. Without robust

protection for such activity, employees may be chilled from exercising their statutory

rights. Disciplining employees who exercise their NLRA rights is generally unlawful under

the NLRA, so the fact that an employee engaged in certain conduct in the course of

NLRA-protected activity, sometimes including the use of offensive language or conduct,

20 Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993); Meritor, 477 U.S. at 67.

21 See, e.g., Ellis v. CCA of Tenn. LLC, 650 F.3d 640, 647 n.2 (7th Cir. 2011); EEOC v. Fairbrook Med. Clinic,

P.A., 609 F.3d 320, 328-29 (4th Cir. 2010).

22 Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 762-65 (1998); Faragher , 524 U.S. at 807-08.

23 Vance v. Ball State Univ., 570 U.S. 421, 424, 427 (2013).

24 Lion Elastomers LLC, 372 NLRB No. 83, slip op. at 11 (2023), remanded on other grounds, 108 F.4th 252 (5th

Cir. 2024); see generally Linn v. Plant Guard Workers Local 114, 383 U.S

P.A., 609 F.3d 320, 328-29 (4th Cir. 2010).

22 Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 762-65 (1998); Faragher , 524 U.S. at 807-08.

23 Vance v. Ball State Univ., 570 U.S. 421, 424, 427 (2013).

24 Lion Elastomers LLC, 372 NLRB No. 83, slip op. at 11 (2023), remanded on other grounds, 108 F.4th 252 (5th

Cir. 2024); see generally Linn v. Plant Guard Workers Local 114, 383 U.S. 53, 58 (1966) (“Labor disputes are

ordinarily heated affairs ….”).

12

does not necessarily permit an employer to impose what would otherwise be unlawful

discipline.

The NLRB seeks to ensure that employers do not discipline employees for offensive

conduct during the course of NLRA-protected activity, unless the conduct is such that the

employees lose NLRA protection.25 The NLRB’s analysis of whether the employee’s

conduct loses the protection of the NLRA depends on the conduct at issue, the context in

which the conduct at issue occurred, and whether the employee’s conduct occurred at or

outside the workplace.26 For interactions with management in the workplace, the Board

considers the location and subject matter of the interaction, the nature of the employee’s

conduct, and whether the conduct was provoked by an employer’s unfair labor practice.27

For conversations between employees and most actions outside of the workplace, the

Board looks to the totality of the circumstances, including the nature of the employee’s

language and the surrounding conversation and the employer’s past treatment of similar

conduct.28 In cases involving strike-line conduct, the question is whether the employee’s

conduct would “reasonably tend to coerce or intimidate” other employees in the exercise

of their NLRA rights, including the right to participate in or refrain from union activity.29

When an employer disciplines an employee for conduct in the course of Section 7 activity

and the employee has not lost the protection of the NLRA, the employer cannot defend

the discipline by claiming that it was not motivat

ld “reasonably tend to coerce or intimidate” other employees in the exercise

of their NLRA rights, including the right to participate in or refrain from union activity.29

When an employer disciplines an employee for conduct in the course of Section 7 activity

and the employee has not lost the protection of the NLRA, the employer cannot defend

the discipline by claiming that it was not motivated by an intent to interfere with the

employee’s right to engage in NLRA protected activity.30

The NLRB’s analysis considers factors that may be relevant when determining whether

conduct is prohibited under the EEO laws, and whether employers may be liable under

the EEO laws for such conduct. This is particularly so when the Board evaluates the

nature of the language or conduct used by an employee in the course of NLRA-protected

activity, which is one of the prongs of the loss-of-protection analysis.31 That prong has

overlap with the question of whether the language or conduct is such that it could create

a hostile work environment or deter an employee from engaging in activity protected

under the EEO laws.

For example, whether the conduct was particularly egregious or severe, or fits into a

pattern of offensive behavior, are considerations to assess under the “nature of the

conduct” prong.32 Offensive conduct related to EEO-protected characteristics that is

severe or pervasive enough to be considered illegal harassment under the EEO laws

would likely be egregious or severe enough to trigger loss of protection of the NLRA.

25 Lion Elastomers, slip op. at 2.

26 Id. at 6, 8-9.

27 Atlantic Steel Co., 245 NLRB 814, 816 (1979).

28 Pier Sixty, LLC, 362 NLRB 505, 506 (2015), enforced, 855 F.3d 115 (2d Cir. 2017).

29 Clear Pine Mouldings, Inc., 268 NLRB 1044, 1046 (1984), enforced mem., 765 F.2d 148 (9th Cir. 1985)

EEO laws

would likely be egregious or severe enough to trigger loss of protection of the NLRA.

25 Lion Elastomers, slip op. at 2.

26 Id. at 6, 8-9.

27 Atlantic Steel Co., 245 NLRB 814, 816 (1979).

28 Pier Sixty, LLC, 362 NLRB 505, 506 (2015), enforced, 855 F.3d 115 (2d Cir. 2017).

29 Clear Pine Mouldings, Inc., 268 NLRB 1044, 1046 (1984), enforced mem., 765 F.2d 148 (9th Cir. 1985). Strike-

line conduct has its own standard in part because the NLRA specifically protects the right to strike and provides that

nothing therein shall “interfere with or impede or diminish in any way” that right unless specifically provided for.

29 U.S.C. § 163.

30 Lion Elastomers, slip op. at 6.

31 Pier Sixty, 362 NLRB at 506; Atlantic Steel, 245 NLRB at 816.

32 See, e.g., Kiewit Power Constructors Co., 355 NLRB 708, 710 (2010), enforced, 652 F.3d 22 (D.C. Cir. 2011).

13

Offensive language or conduct related to EEO-protected characteristics that may

contribute to a hostile work environment but that is not sufficiently severe or pervasive to

meet the legal definition of EEO harassment may still weigh towards loss of NLRA

protection when the nature of the conduct is assessed.33

Employees who persist in using certain language or conduct after being advised not to

do so pursuant to a lawful anti-discrimination or anti-harassment policy are more likely to

potentially lose the protection of the NLRA than those who do not.34 The nature-of-the-

conduct prong also can take account of the likely impact of the employee’s language or

conduct on other employees. This includes whether the language or conduct reasonably

would negatively impact, on account of their EEO-protected characteristics, other

employees’ terms or conditions of employment, or their own exercise of NLRA rights. In

other words, this prong includes whether such conduct reasonably would make other

employees feel less than equal, full-fledged members of the workforce, or less able to

participate in activities protected by the NLRA

asonably

would negatively impact, on account of their EEO-protected characteristics, other

employees’ terms or conditions of employment, or their own exercise of NLRA rights. In

other words, this prong includes whether such conduct reasonably would make other

employees feel less than equal, full-fledged members of the workforce, or less able to

participate in activities protected by the NLRA.

The loss-of-protection standards are objective.35 Evidence of other employees’ actual,

subjective response to the language or conduct can inform the loss-of-protection analysis

but is not essential to it. For example, it can be significant that coworkers filed EEO

harassment complaints regarding the employee’s language or conduct. However, other

employees’ subjective reactions alone are insufficient to cause otherwise NLRA-

protected activity to lose protection. Similarly, an employer’s subjective belief that

conduct implicates EEO laws is not grounds for loss of protection unless the employer’s

belief is also objectively reasonable.

Also relevant to the loss-of-protection analysis is whether the employer has a policy

prohibiting the language or conduct at issue. That analysis also considers whether any

discipline imposed was consistent with the employer’s lawful response to prior similar

conduct.36

2.

Each Law Leaves Space for the Other To Operate

Properly understood, the NLRA and EEO analytical frameworks are complementary and

do not conflict. Neither are absolutes that demand that employers always take or refrain

from particular actions when faced with offensive employee conduct in the course of

NLRA-protected activity. They both can and should be given full effect.

Even when the NLRA is not at issue, per se rules regarding certain types of language or

conduct are not the norm because not every instance of racially or sexually tinged

language or behavior constitutes an actionable hostile work environment under the EEO

laws

n faced with offensive employee conduct in the course of

NLRA-protected activity. They both can and should be given full effect.

Even when the NLRA is not at issue, per se rules regarding certain types of language or

conduct are not the norm because not every instance of racially or sexually tinged

language or behavior constitutes an actionable hostile work environment under the EEO

laws. As explained above, the conduct must be severe or pervasive and both objectively

33 See, e.g., Honda of Am. Mfg., 334 NLRB 746, 746-48 (2001); Advertisers Mfg. Co., 275 NLRB 100, 133 (1985).

34 See, e.g., Honda, 334 NLRB at 748.

35 See, e.g., Pier Sixty, 362 NLRB at 506.

36 See, e.g., id.

14

and subjectively offensive. In addition, I do not believe that the EEO laws require

employers to maintain a zero-tolerance policy regarding offensive language or conduct,

either before or after the conduct rises to the level of a hostile work environment. Nor do

I believe they dictate that an employer responds in any one specific way every time an

employee uses offensive language or conduct. Instead, an employer’s duty is to take

steps reasonably calculated to put an end to the harassment. Thus, the EEO laws leave

room for the employer to take into account the circumstances that the NLRB will consider

in deciding whether a particular response would violate the NLRA.

In turn, NLRA law considers factors that may also go to whether conduct is prohibited

under EEO laws. As discussed earlier, the offensive nature of language used by a

disciplined employee in the course of protected activity is relevant to the analysis of

whether the discipline was lawful. Whether the conduct was related to EEO

characteristics, particularly egregious or severe, targeted a specific individual, or was part

of a pattern of such behavior (as opposed to a single, brief, or spontaneous occurrence)

are considerations for that analysis

e used by a

disciplined employee in the course of protected activity is relevant to the analysis of

whether the discipline was lawful. Whether the conduct was related to EEO

characteristics, particularly egregious or severe, targeted a specific individual, or was part

of a pattern of such behavior (as opposed to a single, brief, or spontaneous occurrence)

are considerations for that analysis. Also relevant is whether the discipline was consistent

with the employer’s response to prior similar conduct, as is whether the employer has a

policy prohibiting the language or conduct at issue. In these ways, NLRA law incorporates

in its analysis whether a reasonable employer would anticipate hostile-work-environment

liability under the EEO laws if it failed to act in response to the employee’s conduct. Thus,

the instances in which discipline is most needed to satisfy EEO obligations are likely also

instances where an employer can show that the discipline was lawful under the NLRA.

The determination of whether to issue an unfair-labor-practice complaint in a particular

case is fact-specific and involves careful analysis of all of the circumstances. For

example, as General Counsel, I might decline to issue a complaint where an employer

took action to address unlawful EEO-based harassment that occurred during the course

of Section 7 activity and the facts indicate that such action was proportionate to the

conduct at issue and was in line with company policy and past practice of addressing

harassment outside the NLRA context. On the other hand, I might issue a complaint on

behalf of an employee who engaged in unlawful EEO-based harassment where the

employer regularly tolerated unlawful EEO-based harassment by employees and only

took disciplinary action in the one instance when an employee engaged in similar conduct

in the context of Section 7 activity.

Finally, it is worth noting that the number of scenarios in which both the NLRA and the

EEO laws are at play is relatively limited

who engaged in unlawful EEO-based harassment where the

employer regularly tolerated unlawful EEO-based harassment by employees and only

took disciplinary action in the one instance when an employee engaged in similar conduct

in the context of Section 7 activity.

Finally, it is worth noting that the number of scenarios in which both the NLRA and the

EEO laws are at play is relatively limited. For employee conduct in the course of NLRA-

protected activity to raise EEO concerns, it must involve harassment based on a protected

characteristic. Cases involving employees’ use of garden-variety insults or general

obscenity or vulgarity are less likely to implicate an employer’s EEO obligations. Similarly,

the NLRA is concerned with employee conduct in the context of protected concerted

activity. An employer’s response to employees’ use of offensive language or conduct

outside of that context is unlikely to pose an NLRA issue. In addition, the NLRA’s

protections extend only to employees, not to supervisors or managers. Employer

responses to harassment by the latter thus rarely will implicate the NLRA because it will

15

not occur in the context of NLRA-protected activity. That fact lessens the possibility of

conflict between the two respective laws, because supervisory harassment is more likely

than co-worker harassment to create a hostile work environment; the former is inherently

more severe because of the supervisor’s authority over the employee. For all of these

reasons, the universe of potential tension points in this area is limited in scope.

3.

Giving Effect to Both Bodies of Law

With the above understanding in mind, an employer can take steps that reflect its

obligations under both the NLRA and the EEO laws.

A key way to avoid harassment in the workplace without running afoul of the NLRA is to

focus on prevention

ployee. For all of these

reasons, the universe of potential tension points in this area is limited in scope.

3.

Giving Effect to Both Bodies of Law

With the above understanding in mind, an employer can take steps that reflect its

obligations under both the NLRA and the EEO laws.

A key way to avoid harassment in the workplace without running afoul of the NLRA is to

focus on prevention. By taking proactive steps, parties can deal with the issue of

harassment and EEO liability before it arises in the more complicated area of NLRA-

protected activity. Prevention can include establishing a culture of a diverse, inclusive,

and respectful workplace. Leadership can model respectful behavior and make clear to

employees that it supports such values. Preventative measures also can involve training,

on both EEO compliance and workplace norms and policies that seek to end harassment

before it reaches legally actionable levels. And, as discussed above, employers can

establish clear anti-harassment rules and regularly communicate them to employees. So

long as these types of preventative measures are clearly focused on harassment, they

are unlikely to raise NLRA concerns. Even apart from NLRA considerations, such ex-

ante steps are an effective means of furthering the goals of the EEO laws. Although the

EEO laws seek to remedy discrimination and harassment, their primary objective is to

prevent such harms before they occur.37

An employer’s response to offensive language or conduct once it already has occurred

likewise can satisfy the employer’s EEO duties while aligning with its obligations under

the NLRA. Because the EEO laws do not mandate a zero-tolerance response, discharge

or other disciplinary measures is not automatically required. At the same time, the fact

that harassment occurred in the course of otherwise NLRA-protected activity does not

foreclose an employer from taking any corrective action in response

y the employer’s EEO duties while aligning with its obligations under

the NLRA. Because the EEO laws do not mandate a zero-tolerance response, discharge

or other disciplinary measures is not automatically required. At the same time, the fact

that harassment occurred in the course of otherwise NLRA-protected activity does not

foreclose an employer from taking any corrective action in response. An employer could

remind employees of existing anti-harassment policies and emphasize their importance.

It could implement new or revised policies, so long as those policies apply uniformly and

were not promulgated in response to NLRA-protected activity. An employer also could

instruct employees not to use the particular language at issue. To make clear that the

employer’s concern is with the language itself rather than the NLRA-protected activity in

which it was used, the employer should accompany that instruction with assurances that

the underlying protected activity is permissible.

By taking such steps, the employer also positions itself to be able to take more serious

action in response to any further incidents with less risk of offending the NLRA. The

37 Faragher, 524 U.S. at 805-06.

16

employer establishes that its true concern is offensive language, not the protected activity.

An employee who continually uses offensive language in the course of protected activity

on multiple occasions when it is not otherwise tolerated may lose the protection of the

NLRA, especially if they previously had been warned not to do so and were not provoked

to do so by the employer.

If an employer does turn to discipline in response to offensive language or conduct in the

course of NLRA-protected activity, its actions should embody the principles of consistency

and proportionality familiar to both the NLRA and the EEO laws

ed may lose the protection of the

NLRA, especially if they previously had been warned not to do so and were not provoked

to do so by the employer.

If an employer does turn to discipline in response to offensive language or conduct in the

course of NLRA-protected activity, its actions should embody the principles of consistency

and proportionality familiar to both the NLRA and the EEO laws. Employers may not treat

employees who have engaged in such conduct in the course of NLRA-protected activity

more harshly than employees who engaged in the same conduct in other contexts.

Accordingly, employers should consider whether their disciplinary actions are handled in

accordance with established organizational policies, agreements, and legal authorities,

and are consistent with the employer’s past lawful practices. To achieve that goal,

employers may ensure that managers who have the authority to impose disciplinary

action are aware of and comply with applicable law and organizational policies when

making disciplinary decisions, including discipline related to harassing conduct in the

Section 7 context. Employers could require that such managers receive training about

their responsibilities under the NLRA and the EEO laws soon after hire and on a regular

basis thereafter. Effective training in NLRA obligations also would make it less likely that

the employer would commit unfair labor practices, which is relevant because whether an

employee’s conduct in the course of Section 7 activity was provoked by an employer’s

unfair labor practice is a factor for determining whether the employee’s activity retained

the protection of the NLRA.38

Those shared principles of consistency and proportionality support EEO goals as well as

NLRA goals. Importantly, adherence to those principles is not just a matter of

accommodating the respective laws, but also of affirmatively furthering both of them

by an employer’s

unfair labor practice is a factor for determining whether the employee’s activity retained

the protection of the NLRA.38

Those shared principles of consistency and proportionality support EEO goals as well as

NLRA goals. Importantly, adherence to those principles is not just a matter of

accommodating the respective laws, but also of affirmatively furthering both of them. For

example, both bodies of law are concerned with employers using an employee’s offensive

conduct as a pretext to discharge or discipline that employee. Indeed, discipline for

purported harassment could mask discrimination based on protected characteristics just

as it could mask retaliation for NLRA-protected activity. In addition, employees’ use of

racially or sexually charged language may occur in the context of opposing harassment

or discrimination—efforts that can be protected by both the NLRA and the EEO laws.

Employees must be able to engage with and seek support from one another and others

to address such concerns, and to confront their employer about them, without fear of

reprisal even if those conversations at times get heated. Such conversations may be

uncomfortable, but neither the NLRA nor the EEO laws permit, let alone require,

employers to squelch them by taking action against the employees who engage in them.

38 Lion Elastomers, slip op. at 20.

17

III.

Conclusion

Every day, in workplaces across the country, the NLRA and the EEO laws work in parallel

and in tandem to allow workers to improve their work environments. In circumstances

where the NLRA and the EEO laws are most likely to overlap, there are no set absolutes;

instead, there is room for both to operate and to be given full effect without doing damage

to either

t 20.

17

III.

Conclusion

Every day, in workplaces across the country, the NLRA and the EEO laws work in parallel

and in tandem to allow workers to improve their work environments. In circumstances

where the NLRA and the EEO laws are most likely to overlap, there are no set absolutes;

instead, there is room for both to operate and to be given full effect without doing damage

to either.

Through issuance of this guidance memorandum, I emphasize legal rights and

responsibilities under the NLRA and the EEO laws and make clear that harmonization of

the NLRA and the EEO laws is not only possible, but necessary, in order to fully effectuate

the important missions of both the NLRB and the EEOC.

Thank you for your continued dedication in protecting workers’ rights, enforcing our

statute, and serving the public in a stellar manner. I am proud to work with each and

every one of you.

/s/

J.A.A.