Harassment in Workplace May Seem Obvious, Except When It Isn’t

Chris Opfer in New York at copfer@bloomberglaw.com; Robert Iafolla in Washington at riafolla@bloomberglaw.com. Posted Nov. 20, 2018, 6:15 AM

Cooper Tire & Rubber Co. thought it was finished with Anthony Runion when it fired him for yelling racial slurs at workers brought in to cross a picket line.

Until a federal appeals court ordered Cooper to rehire Runion with back pay.

“I told clients after that decision to pick a plaintiff,’’ said Jonathan Segal, an attorney at Duane Morris in Philadelphia who advises businesses on labor and employment issues. “Do you want the NLRB to sue you on behalf of a racist or a misogynist or do you want the EEOC to sue you on behalf of someone harmed by a racist or misogynist?”

Six years later, in the midst of the #MeToo movement and political polarization that has spilled over into workplaces, there’s still no clear and consistent definition of where protected labor activity ends and unlawful workplace harassment begins.

The Cooper Tire case and a high-profile lawsuit against Google spurred the National Labor Relations Board and the Equal Employment Opportunity Commission to work toward joint guidance on what harassment is under federal law.

The agencies have since shelved that initiative, saying much of the question was resolved by a NLRB decision involving Boeing Co. that loosened restrictions on general workplace civility rules. But they left gray areas.

“The Boeing decision clearly says you can have a civility code that says people need to treat each other with respect,” EEOC Commissioner Chai Feldblum (D) told a group of lawyers at an American Bar Association event. “Obviously, if you apply that civility code to punish someone for union activity—guess what?—that will be a problem.”

The Republican-majority NLRB, in a case challenging a “no camera” rule at a Boeing facility outside of Seattle, said companies can impose general workplace conduct restrictions without violating workers’ labor rights. And three months later, the board rejected a complaint by former Google engineer James Damore, who was fired over a 3,000-word screed in which he blamed gender disparities at the tech giant on “biological differences” between men and women and accused the company of nurturing a “politically correct monoculture.”

Those decisions give businesses significant leeway to enforce general civility rules on the job, several labor and employment attorneys told Bloomberg Law. They don’t shed any light, however, on trickier issues like aggressive behavior on a picket line and vulgar barbs slung at managers in the runup to a union election.

Picket Line Problems

In a memo following the Boeing decision, NLRB General Counsel Peter Robb said general civility rules are part of a category of workplace restrictions presumed not to infringe workers’ rights to engage in “concerted activities” for “mutual aid and protection” guaranteed by the National Labor Relations Act. Robb and the board have yet to tackle how those rules might apply on the picket line.

NLRB rulings have recognized that strikes are unusual and inherently disruptive. A different legal framework has applied to picket lines than what the board uses in everyday work settings, where employers have more discretion to prevent disruptions, said Manuel Quinto-Pozos, an attorney with Deats Durst & Owen who represents workers and unions.

“It would erode worker protections if the board did away with the recognition of that difference,” Quinto-Pozos told Bloomberg Law. “This should not be seen as unions condoning repugnant behavior. But the breathing space on the picket line is broad enough to sometimes allow for repugnant but protected behavior.”

In general workplace situations the board tries to balance an employer’s interest in maintaining its work environment with an employee’s right to collective action. The standard is looser on the picket line, where the NLRB has likened misbehavior to moments of “animal exuberance” that may be excused.

The board in a 1984 case involving striking workers at a Clear Pine Mouldings plant in Oregon said that picket-line speech can lose legal protection if it’s threatening or coercive.

The NLRB has applied the Clear Pine Mouldings standard in several cases to defend vulgar speech and racial epithets, including the Cooper Tire case. In a 2006 ruling, for instance, the board found that a picketing worker at a motorcycle aluminum die casting facility in Pennsylvania didn’t lose legal protections for raising his middle fingers and yelling racial slurs at a black security guard.

The NLRB similarly in 2014 protected a striker who allegedly grabbed his crotch and made an obscene gesture toward a female, non-striking co-worker. A federal appeals court in Washington, D.C., upheld that finding two years later, although Judge Patricia Millett penned a concurring opinion that blasted the NLRB for repeatedly permitting the “types of demeaning and degrading messages that for too much of our history have trapped women and minorities in a second-class workplace status.”

Questions in ‘Hot Situations’

The trap for employers is that Title VII of the 1964 Civil Rights Act makes them liable if they don’t take appropriate action to root out harassment and eliminate what courts call a “hostile work environment.”

“We understand that in a hot situation there may be some less than ideal conduct, but if it becomes a clear violation of Title VII that’s a problem,” Segal said.

Robb, who was confirmed as the board’s top prosecutor after being tapped by President Donald Trump last year, wants to challenge some of those earlier board decisions when new cases eventually get to the board. NLRB Associate General Counsel Alice Stock recently told a group of attorneys that Robb “would like to offer an alternative analysis” for the five-member board to consider in cases surrounding offensive behavior on the job.

“The general counsel believes that the NLRA and Title VII should be read in harmony with each other and that conduct that violates one law should not and is not to be protected under the other law,” Stock said.

Meanwhile, other situational factors outside of the picket line also highlight the ongoing conflict between the two laws. That includes offensive conduct in the runup to a union election.

The board said in 2015 that a worker who posted an obscenity-laced tirade against his boss on Facebook didn’t lose his legal safeguards. The offending Facebook post, the board said, was part of a series of worker attempts to protest and improve how they were being treated by supervisors. The incident also took place amid a union organizing campaign.

An appeals court later backed up that decision.

More cases are likely on the way, according to Quinto-Pozos.

“Obviously #MeToo and the Black Lives Matter movement are making this issue more salient,” said Quinto-Pozos. “But as practitioners, we have to deal with conflict and uncertainty in the law.”

Preparing the Workplace for Generation Z

Nexsen Pruet – Cherie W. Blackburn

During the next few years, we will see an increase in the number of workers entering the workplace who are part of Generation Z. This generation, born after 1995 and now in their 20s, brings a new perspective on personal and professional values, an inherent understanding of technology and an acceptance of diversity unlike those that preceded it. As the largest generation in the United States, it will alter the workplace for years to come. In order to maintain a strong workforce, businesses and organizations must attract and retain Generation Z workers. Understanding their values and what makes them different from previous generations will be crucial to achieving this goal.

As members of Generation Z enter the workforce, there will be up to five generations working together: Traditionalists, born 1925-1945; Baby Boomers, born 1946-1964; Generation X, born 1965-1980; Millennials (Generation Y), born 1981-1995; and Generation Z, born after 1995. According to a 2017 Nielsen report, Generation Z makes up 26 percent of the U.S. population; Millennials, 22 percent; Generation X, 20 percent; Baby Boomers 24 percent; and the Greatest Generation (Traditionalists), 9 percent.[1] In many cases, a Generation Z individual new to the workplace will be reporting to a Baby Boomer, who, through hard work and long hours, has earned an executive or management position. The dichotomy between these two generations, if not acknowledged and addressed appropriately, will result in workplace disharmony, increased complaints and the potential for legal action.

Who is Generation Z?

A Gen Z was born into a time of social media. They were the first generation to have internet technology available at a young age. According to U.S. consultants Sparks and Honey, in 2014, 41 percent of Generation Z spent more than three hours per day using computers for purposes other than schoolwork, compared with 22 percent in 2004.[2] They have been described as having a “digital bond” with the internet. They view life through smartphones, they share music and photos and they communicate with the touch of a button and purchase products on demand. They have a considerable capacity for processing large amounts of information.

Individuals in Generation Z are the children of Generation X,[3] which is described as having “the least credence in the concept of the American Dream among adult generations.”[4] The Great Recession that began in 2008 taught Generation Z to be independent and led to an entrepreneurial mindset that emerged after they saw their parents and older siblings struggle in the workforce.[5] Generation Z is the most diverse generation in American history and will likely be the last with a Caucasian majority. Hispanic, African-American, Asian and two or more races (multiracial) make up 47 percent of the Gen Z population.[6]

What is Important to Generation Z?

In her book Generation Z in the Workplace, Dr. Candace Steele Flippin looks at the personal and professional values of this segment[7]. She conducted a study in which she asked participants to rank six values in order of importance. Gen Z ranked happiness at the top of the list, with career near the bottom:

1. Happiness
2. Relationships
3. Health
4. Financial security
5. Career
6. Faith[8]

When asked to list the most important element of the American Dream, both men and women in Gen Z put being able to achieve goals at the top and home ownership and building a legacy at the bottom:

Men	Women
1.Being able to achieve goals	1. Being able to achieve goals
2.Financial security	2. Ability to pursue education
3.Freedom of speech	3. Financial security
4.Ability to pursue and education	4. Freedom of speech
5.Building a legacy	5. Home ownership
6.Home ownership	6. Building a legacy[9]

Flippin found that members of Gen Z value “doing well in their role, being able to contribute meaningfully to their workplaces, and making good money.”[10]

Gen Z’s parents taught them the importance of working hard. They understand there is a need for constant skill development in order to stay relevant, and they are willing to do what it takes – but they expect to be rewarded for their efforts.[11] Unlike many Millennials, members of Generation Z want to work independently rather than on teams or in groups. They like to work alone; prefer to have office space to themselves, rather than an open, collaborative workspace; and want to manage their own projects so that their skills and abilities can shine through.[12] They do not want to depend on others to get their work done.[13]

Their independence and desire for financial security comes, in part, from the effects the economic downturn that began in 2008 had on their family. Many in Gen Z are deciding to forego a four-year college degree to avoid the associated debt, and are entering the workforce straight out of high school with no further education or while taking college classes online. They are entrepreneurial; 72 percent of Gen Z high school students say that they want to start a business, reflecting their desire for independence and financial success.[14] Unlike many Baby Boomers, members of Generation Z are not willing to sacrifice a personal life for career success.

Managing Generation Z

Management should be careful not to stereotype employees who fall within a certain generation as always having a certain set of characteristics. It is, however, helpful for managers to be aware of what drives employees and to understand the differences between one generation and the next. Managing Generation Z as if they were Millennials is not likely to be successful, just as managing Millennials the same as Baby Boomers will not work.

The following are some characteristics of Generation Z that employers should take note of when managing them:

• They are ready and willing to work.
• They want to be fully engaged in work they enjoy.
• They are willing to put in the time and effort to expand their opportunities and get ahead in their careers.
• They need a sense of purpose.
• They want a boss they can respect.
• They want some freedom and autonomy to express their ideas.
• They need to understand their task or assignment and how it fits into the big picture.
• They want someone to listen to their ideas and take them seriously.
• They want to be challenged.

This is not a generation that wants to come to work, do the job assigned and go home. Managers should make rote tasks mean something, and illustrate exactly what the big picture is and explain the worker’s role is helping realize it.[15] Keeping in mind that a sense of purpose is paramount for these employees, good managers should foster this instinct and point it in constructive directions.[16]

In her study, Flippin asked Generation Z employees to 1) “list one thing you would like your supervisor to start doing to help you be more successful in your role,” and 2) list one thing you would like your supervisor to stop doing.[17] The respondents identified the following as things their supervisors could do to help them be more successful:

• Provide opportunity and encouragement and freedom to take initiative and move ahead.
• Give clear and detailed communications about directions and expectations.
• Offer more feedback on things well done.
• Offer appropriate and continuing training, including cross-training in other departments.
• Be a boss who is kind, respectful, supportive and understanding.[18]

Among the actions that Generation Z employees want their supervisors to stop doing are micromanaging, playing favoritism, being vague, not being available and treating them like children.[19]

While no employee wants a manager with the above deficiencies, this generation in particular wants clear direction, feedback and communication. Managers should provide opportunities for Gen Z employees to increase their skills and share their ideas. They should trust the employee’s abilities unless proven otherwise, and provide regular feedback, not only as to how the employee is performing, but also how his or her performance affects the team, project and organization as a whole. Simply providing a numbered score or a “needs improvement” on an evaluation without further feedback is not effective management.

For those supervisors who understand what motivates a Generation Z employee, and who manage accordingly, the reward can be a hardworking and successful employee who makes a valuable contribution to the organization. Given the attributes that are important to Generation Z employees, they are likely to become successful managers of those who follow.