Labor and workplace discrimination laws on a collision course?

Posted on August 17, 2017 | By Omid Nosrati | Firm News,Wrongful Termination

One day after former Google employee James Damore filed a National Labor Relations Board complaint, a court ruling may have already bolstered the merits of his complaint.

Damore is the former engineer whose candid email recently garnered banner headlines that saw his name and story trend on social media. After sending the missive where he claimed that gender inequality in software engineering is based on biological differences, he was fired for the memo.

On the very next day, the U.S. Court of Appeals for the Eighth Circuit ruled in favor of an NLRB order forcing Cooper Tire to rehire Anthony Runion. He was terminated over shouting racially charged insults at a group of replacement workers who were mostly black.

The NLRB administrative law judge agreed that Runion’s comments were “racist, offensive, and reprehensible.” However, he still ruled that Cooper Tire violated federal labor laws by terminating him for participating in a strike that didn’t involve violence, a “concerted activity” protected under the National Labor Relations Act.

Cooper Tire then took the matter before the Eighth Circuit to argue their rights to enforce rules against racial harassment. However, a divided appellate court claimed that the employer went too far in firing Runion.

Factual distinctions between the cases exist, but the interplay is more challenging. Damore also claims that his employer retaliated against him for an activity protected under the National Labor Relations Act. Yet, the engineer did advance stereotypes that some workers found offensive, albeit through a different medium.

Currently, the Equal Employment Opportunity Commission is considering an open question about protected labor activity moving into unlawful discrimination or harassment territory. They are currently conferring and consulting with their board to determine existing conflicts in an effort to “harmonize the interplay of federal EEO laws and the NLRA.”

Beyond Damore vs. Google and Runion vs. Cooper Tire rulings, labor and workplace discrimination laws seem to be on an inevitable collision course.