The Equal Employment Opportunity Commission (EEOC) is the sole authority on how employers are to protect their employees from abusive and harassing behavior by other employees or supervisors. On September 29, the Equal Employment Opportunity Commission (EEOC) released long-awaited proposed guidance on how employers should handle various types of harassment that can occur in the workplace. In this guidance, they chose not to address a problem that could result in an employer having a union imposed on it without the benefit of a secret ballot election.
In a series of decisions, the NLRB has taken the position that employees who are engaged in a union organizing drive or discussing workplace issues with their colleagues or management have unlimited range to use objectively objectionable language and other harassing tactics that would otherwise be prohibited by Title VII. Furthermore, if an employer decides to protect their employees from such behavior by disciplining or dismissing an employee, the NLRB will consider that an unfair labor practice (ULP). If the NLRB finds an employer has committed a ULP during an organizing campaign, the employer can be forced to recognize a union using a card check process. Card check means that workers do not get the benefit of a secret ballot to vote on a union—instead they can be pressured into signing union cards.
Because the EEOC’s guidance is silent on this issue, the U.S. Chamber submitted comments to the EEOC calling out this problem and stressing that only the EEOC can decide how to protect employees from harassment, not the NLRB.
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