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Second Circuit holds Title VII has always protected sexual orientation within its protection of “sex”

Following a recent series of cases discussed earlier on this blog, the Second Circuit has held that sexual orientation is, and has always been, included within the meaning of Title VII’s protection of “sex.”

Title VII prohibits discrimination on the basis of sexual orientation as discrimination “because of . . . sex.” To the extent that our prior precedents held otherwise, they are overruled.

Source: Zarda v. Altitude Express, Inc., case no. 15-3775 (2nd Cir. 2/26/18).

Second Circuit OK’s profanity in the workplace

In a controversial case, the Second Circuit affirmed the NLRB’s decision that profanity – profanity any reasonable employer would arguably not permit in its workplace – must be permitted in the workplace. This stunning decision was rendered under Section 7 of the National Labor Relations Act, which is a section of that law that applies to non-union as well as unionized employers. Section 7 permits employees to engage in speech to further their wages, hours and working conditions.

In this case, the speech was designed to solicit support for a union in its organizing campaign. An employee felt his supervisor spoke to him harshly, so, on a break at work, he used his phone to post on Facebook text that included saying that supervisor “is such a NASTY MOTHER F*CKER don’t know how to talk to people!!!!!! F*ck his mother and his entire f*cking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!” (Asterisks added.) What most employers and management-side counsel would find so striking about this language is its combination of purely gratuitous profanity – the graphic cursing adds nothing to the message’s content – but its attack on the supervisor’s mother and “entire” family. Still, when the employee was discharged, and a charge filed at the NLRB, the Board and now the Second Circuit held against the company,

How could both the Second Circuit and the NLRB find this language not only acceptable but legally protected? One unusual fact in the case is perhaps significant and may limit this decision to this particular workplace: The court said that there was “widespread profanity in the workplace, including the words ‘f*ck’ and ‘mother*cker,’ among other expletives and racial slurs.” (Asterisks added.)

Because the profanity occurred in social media, the Second Circuit reiterated the NLRB’s multi-factor test for social media postings:

The “totality of the circumstances” test for evaluating an employee’s use of social media may consider the following factors: (1) any evidence of antiunion hostility; (2) whether the conduct was provoked; (3) whether the conduct was impulsive or deliberate; (4) the location of the conduct; (5) the subject matter of the conduct; (6) the nature of the content; (7) whether the employer considered similar content to be offensive; (8) whether the employer maintained a specific rule prohibiting the content at issue; and (9) whether the discipline imposed was typical for similar violations or proportionate to the offense. Pier Sixty, LLC, 2015 WL 1457688, at *3.

The Second Circuit’s conclusion suggests this case is limited to its unique facts, making it the “outer-bounds” (as the Second Circuit, itself, called the decision) of this seemingly already stretched reading of Section 7. The court described its own decisions, as follows:

In sum, Pier Sixty has failed to meet its burden of showing that Perez’s behavior was so egregious as to lose the protection of the NLRA under the Board’s “totality‐of‐the‐circumstances” test.   However, we note that this case seems to us to sit at the outer‐bounds of protected, union‐related comments, and any test for evaluating “opprobrious conduct” must be sufficiently sensitive to employers’ legitimate disciplinary interests, as we have previously cautioned.50 We have considered all of Pier Sixty’s objections to enforcement and have found them to be without merit.

The case was NLRB v. Pier Sixty, LLC (2nd Cir. 4/21/17).