NYC Bans Employment Discrimination on the Basis of Height and Weight

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Hey Compliance Warriors!


In a landmark decision that is set to have significant implications for employers across the United States, the National Labor Relations Board (NLRB) has issued a ruling that will make it more difficult for businesses to discipline or dismiss workers for “abusive behavior.” The ruling, known as Lion Elastomers LLC II, represents a significant departure from the Board’s previous 2020 ruling in the General Motors case, which had allowed employers to discipline employees for such behavior, even if it occurred during a protected Section 7 activity, such as a strike or union organizing campaign.


Under the new ruling, employers will be required to scrutinize the background of abusive behavior before taking disciplinary action against a worker. The ruling is based on the premise that any “behavior during a protected activity should be considered as a component of that activity—not as if it transpired… in a typical workplace scenario.” This means that employers will need to consider a range of context-specific standards when assessing whether an employee’s behavior is protected under Section 7 of the National Labor Relations Act.


For example, the Board will take into account the location, topic, and character of the employee’s outburst if it is directed at management within the workplace. Similarly, if the outburst occurs during picketing, the Board will assess whether non-strikers could have been coerced or intimidated by the behavior. For social media posts and workplace conversations among employees, the Board will examine the “totality of the circumstances” around the speech.


While the Lion Elastomers ruling has been welcomed by some as a victory for workers’ rights, others have expressed concern that it could lead to inconsistent legal precedents and overly protect employees who engage in serious workplace misbehavior that verges on harassment or hate speech. Opponents of the ruling argue that the employer’s duty to shield employees from discriminatory outbursts could be compromised if they are required to ignore such behavior during a protected Section 7 activity.


Ultimately, the recent ruling by the NLRB has made it more challenging for employers to discipline employees for outbursts occurring during potentially protected activities. Employers must exercise caution when dealing with an employee who may be participating in protected conduct, even if their statements are blatantly offensive and inappropriate. To navigate these challenges, it is advisable for employers to revisit their workplace speech policies, including harassment prevention and social media usage guidelines.


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