How the NLRB's Light Still Shines on Anti-Discrimination Law Fifty Years After Title VII
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On July 2, 1964, President Lyndon B. Johnson signed into law the Civil Rights Act of 1964. Provisions in Title VII of that statute ("Title VII") created a ban on employment discrimination. Title VII specifically establishes that "it shall be unlawful for an employer to fail or refuse to hire, discharge, limit, segregate, classify, or otherwise discriminate against any individual, with respect to wages, privileges, and other terms of employment because of that individual's race, color, religion, sex, or national origin." As the passage of Title VII approaches its fiftieth anniversary, this Article explores what may be thought of as the unlikely impact of the National Labor Relations Board ("NLRB" or "Board") on anti-discrimination law principles used to protect employees. How an agency charged with enforcing labor law protections under the National Labor Relations Act ("NLRA") has affected anti-discrimination principles for employee protection under Title VII may not represent an obvious correlation, especially with the creation of the Equal Employment Opportunity Commission ("EEOC") as the agency charged with enforcing employment discrimination claims under Title VII. However, the merger of anti-discrimination law with labor law over the last fifty years has represented a necessary but uneasy relationship as union density has declined' while Title VII claims have increased under daunting legal and procedural limitations that typically make court claims a losing proposition. As a result, this Article asserts that after almost eighty years of existence, the NLRB continues to play a major role in addressing discrimination in the workplace. Several recent actions taken by the Board during President Barack Obama's tenure (the "Obama Board") have helped to amplify the necessity of the NLRB as a supplement to Title VII enforcement. As employees face more difficulties and obstacles in successfully pursuing Title VII claims, this Article argues that the presence of the NLRB as a check on employer actions that stifle concerted activities by employees, including employee efforts to protest or challenge discriminatory workplace practices, has provided an ongoing light at the end of the tunnel for employees frustrated by Title VII's limitations. With ongoing Congressional efforts to emasculate the NLRB's powers and limit the NLRB's funding, that light flickers. But that light has not burnt out over the past fifty years of Title VII enforcement as the labor movement continued to supplement Title VII. The Obama Board has increased its efforts to challenge employer policies in non-union settings when those policies have the effect of chilling concerted activity. In taking these actions pursuant to the NLRA, the Obama Board has extended a helping hand to employees seeking protection from discrimination in the workplace under Title VII as well.12 With NLRB rulings finding labor law violations for policies prohibiting the discussion of salaries, policies prohibiting discussion of confidential information, policies prohibiting disparagement of the employer, policies prohibiting harassment, policies limiting communications on social media, and policies limiting employee opportunities to pursue class arbitrations, the Obama Board has filled an important gap that Title VII enforcement has not been able to address either through agency action by the EEOC or by legislative change. As a result, this Article asserts that the NLRB be allowed to continue as a viable force in addressing workplace concerns about unfair treatment of employees as a supplement to what employees with statutory discrimination claims may pursue. Ongoing efforts to render the NLRB powerless must be addressed directly. A powerless NLRB can have an impact not just on organized labor, but also on employees of color and female employees as a whole who are not in organized workplaces. The NLRB must continue its important role in providing additional support for certain employee rights that Title VII has attempted to address for almost fifty years. By applying NLRA analysis in a non-union setting to protect employees from being chilled in concerted activity including pursuing discrimination matters, the NLRB's crucial support for those employee concerns still represents an important contribution to the development of anti-discrimination law even fifty years after the passage of Title VII. This Article is organized as follows: In Section I, this Article examines the historical impact of the NLRA's enforcement by the NLRB at the time of Title VII's passage fifty years ago and how the powers of the NLRB limited the development of the EEOC's powers. Section II describes a number of NLRB decisions that have supported employees with concerns about workplace matters by giving them an opportunity to use the NLRA to protect their rights, including several important decisions by the current Obama Board. Section III highlights the significance of continuing to allow the NLRB to play a major role in the union and non-union workplace. The Article concludes in Section IV that the NLRB's importance in providing a check on employer workplace discrimination operates in a way that consistently provides employees with the supplement to Title VII necessary to effectuate purposes of that statute fifty years after its passage.