Former NLRB GC Abruzzo’s Parting Words on the Complementary Relationship between NLRA and EEOC Statutes

On January 16, 2025, then-NLRB General Counsel Abruzzo issued Memorandum GC 25-04, Harmonization of the NLRA and EEO Laws. The memo responds to criticism from employers that NLRB decisions issued under the Biden administration, such as Stericycle and Lion Elastomers, undercut an employer’s duty under federal and state equal employment opportunity laws to maintain a workplace free of unlawful harassment and discrimination.

Employers Report an EEO and NLRA Compliance Catch-22

The NLRB has interpreted employees’ right to engage in protected, concerted activity under Section 7 of the Act to allow employees significant leeway to engage in “heated” discourse, including the use of foul or harassing language, to advocate for themselves and their co-workers. This language may involve the use of discriminatory terms that may collide with protections afforded under federal employment anti-discrimination laws, such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Age Discrimination in Employment Act. Employers are often surprised to learn of NLRB decisions protecting arguably racist and sexist behavior. Practically speaking, employers have been put into a difficult position: either permit the employee conduct as protected concerted activity under the NLRA, or risk violating federal employment anti-discrimination and harassment laws.

Decisions under the first Trump Board helped bridge the gap between EEO and NLRA compliance. The 2020 General Motors decision implemented the Wright Line burden-shifting analysis for analyzing whether discipline for employee conduct was unlawfully based on an employee’s Section 7 activity, similar to the McDonnell Douglas test in federal employment anti-discrimination cases.¹ Additionally, the 2020 Boeing decision declared presumptively lawful certain employer policies, including workplace civility rules and the maintenance of confidentiality during EEO investigations. The Biden Board, however, overturned these decisions in Stericycle² and Lion Elastomers,³ leaving employers to grapple with EEO and NLRA compliance once again.

Memo Attempts to Assist Employers with Dual Compliance but Uncertainty Remains

In this memo, then-GC Abruzzo responds to employer concerns of a tension between maintaining a harassment-free workplace under federal and state employment anti-discrimination laws on the one hand, and complying with the Board’s liberal standard for protected concerted activity on the other. Following a lengthy discussion of how the NLRA and laws enforced by the EEOC share similar goals and underlying principles, such as dignity in the workplace, anti-retaliation, and rooting out discrimination in the workplace, the GC addresses three areas of “perceived” tensions in complying with the NLRA and EEO laws.

• Workplace Civility Rules and Anti-Discrimination Policies

The major takeaway is Abruzzo’s assurance that maintaining an EEO-compliant anti-harassment rule(s) does not violate the NLRA. The memo notes, “Carefully crafted, such rules can further both NLRA and EEO goals.” EEO anti-discrimination/harassment policies, she explains, should not be conflated with civility rules, which generally require a certain level of decorum in the workplace. Civility rules commonly require employees to be, for example, respectful, courteous, harmonious with others, and refrain from profanity. Civility rules are problematic because they “often regulate or prohibit behavior that does not necessarily contribute to or rise to the level of unlawful harassment under the EEO laws.” In other words, protected concerted activity may be uncivil but not related to a protected characteristic or sufficiently severe or pervasive enough to be an EEO violation. The GC’s solution is a standalone rule that specifically prohibits harassment based on EEO-protected characteristics, uncoupled from any general civility obligation.

• Investigative Confidentiality Rules

Employers commonly instruct employees involved in an investigation to keep the matter confidential, but such rules may unlawfully restrict employees’ Section 7 right to engage in protected concerted activity.⁴ As with anti-harassment policies and civility rules, employers should be careful that a “broadly and generally worded” investigative confidentiality rule may interfere with employees’ right to seek support or file a charge with the NLRB. The memo makes clear, however, that “the NLRA does not prohibit all investigative confidentiality rules for employees.”

When are investigative confidentiality rules lawful? The GC writes, “employers have the flexibility to request confidentiality in a tailored manner when it is truly needed, and employees should retain their right to discuss workplace investigations when it is not.” Abruzzo advises employers to use a fact-specific analysis and analyze the content of the complaint prior to assigning confidentiality provisions. According to the GC, if a confidentiality instruction is warranted, employers will be in compliance with the NLRA if they: (i) identify the scope of the confidentiality requirement – including who it covers and how long it lasts and (ii) remind employees their participation in the employer’s investigation does not preclude them from filing a complaint with the government or speaking to third parties (such as a union) about the investigation. In practice, when confidentiality is “truly needed” and what is the appropriate scope of the confidentiality requirement are to be determined through litigation.

• Employee Conduct in the Course of NLRA Protected Activity

Perhaps most troubling for employers is how to handle potential protected concerted activity that might contribute to a hostile work environment under EEO laws but itself does not rise to that level. How can an employer avoid EEO liability while not violating the NLRA? Unfortunately, employers won’t find a bright-line rule in this memo. Abruzzo advises that “[o]ffensive language or conduct related to EEO-protected characteristics that may contribute to a hostile work environment but that is not sufficiently severe or pervasive to meet the legal definition of EEO harassment may still weigh towards loss of NLRA protection when the nature of the conduct is assessed.” She offers a totality-of-the-circumstances approach, in essence, taking into account the nature of the employee’s conduct and the employer’s past responses. Employers may consider the nature of the conduct, including whether and in what manner EEO-protected characteristics are implicated, the context of the discipline, including if the employer has consistently applied discipline to the behavior, and whether the employee is a repeat offender. Recidivist employees are more likely to lose NLRA protection because their conduct could negatively impact other employees’ terms of employment or make them less likely to participate in protected concerted activity. Employers may also consider the response of other employees, although that is not dispositive.

Some employers have a “zero tolerance” policy to prevent incidents implicating EEO-protected categories from rising to the level of a hostile work environment. In the GC’s opinion – on statutes she did not enforce – EEO laws do not require employers to maintain a zero-tolerance policy regarding offensive language or conduct, either before or after the conduct rises to the level of a hostile work environment. Her opinion conflicts with federal court decisions holding that a single use of a racial epithet can support a hostile work environment claim.⁵

Overall, the memorandum does not draw a hard and fast rule for employers, and still leaves uncertainty as to where employers should “draw the line” when it comes to the intersection of protected activity and discriminatory behavior.

EEOC: Missing in Action

Even though the memo seeks “harmonization” of the “NLRA and EEOC laws,” the memo was issued unilaterally by Abruzzo without the EEOC’s backing. Earlier this year media reports indicated that Abruzzo and the EEOC were on the verge of issuing a joint enforcement memo addressing the tension between the NLRA and the EEO laws. The EEOC Republican Commissioners voted in April to pause the joint enforcement memo until a public hearing could be held on the draft. Historically, the EEOC has acted on a bipartisan basis to reconcile the requirements of Section 7 of the NLRA and the laws the EEOC enforces. Most notably, in November 2019, the EEOC unanimously and on a bipartisan basis authorized the filing of a brief authored by the EEOC’s Office of the General Counsel, arguing that employees can lawfully be disciplined for making abusive or offensive comments during activity otherwise protected under the NLRA.⁶ The fact that the EEOC apparently decided to abandon the joint enforcement memo and did not issue any statement supporting potentially calls into question the points made in GC Abruzzo’s memo.

Practical Takeaways for Employers

• Strive for consistency in disciplinary practices, both in the decision to apply company policy and the severity of any discipline imposed. Prior, consistent enforcement of EEO-based harassment policies – both in application and proportionality – will bolster an employer’s defense when it disciplines or terminates employees that are also engaged in Section 7 activity but commit violations of EEO policies. If the first time the employer chooses to enforce an EEO-based harassment policy is in the context of Section 7 activity, the Board will likely view that enforcement as suspect. This is true of the Board under any political administration. 

• Maintain and clearly communicate to employees an EEO-compliant anti-discrimination and harassment policy, as distinct from any general civility rules governing workplace behavior. Review the company handbook for such civility rules that may be unlawfully overbroad, unless and until the NLRB changes the Stericycle standard for evaluating the legality of employer policies in the future.

• Blanket instructions to employees to keep workplace investigations confidential is problematic under the NLRA, again unless and until the NLRB revisits Stericycle. Consider the legitimate business reason for confidentiality on a case-by-case basis and narrowly tailor the scope of the requirement accordingly.

• Continue to document internal investigations and confidentiality provisions carefully. Documentation of narrowly tailored confidentiality provisions, and proof of tailored confidentiality provisions for different investigations, may be a helpful defense.

• Consult experienced labor counsel on disciplinary matters that may involve NLRA-protected concerted activity. Employers should be aware that disciplining an employee, particularly in a case involving a union campaign, for engaging in disruptive or aggressive behavior involves a careful assessment. Under the Board’s Cemex decision, substantiated unfair labor practice charges may result in an order to recognize and bargain with the union.

The change of party leadership at the NLRB signals a more business-friendly approach to employer policies in the long term, at the same time that Biden Board decisions are receiving an unfriendly reception in federal Courts of Appeal.⁷ Change will not be overnight, however. In the meantime, employers are advised to work with counsel to manage the risks associated with balancing EEO and NLRA compliance.