Slurred Speech: How the NLRB Tolerates Racism

LeRoy, Michael H.

Racist speech in union representation elections is widespread and conflicts with the protections of Title VII for diverse employees across different industries. These messages contain slurs, promote white supremacy, and incite fears of
legal favoritism for Blacks. Some besmirch Jews, Latinos, Japanese, and Mormons. The rise of white nationalism motivates my empirical study of racist speech in union representation elections. My database consists of fifty-one National Labor Relations Board cases and twenty-nine appellate court rulings on racially divisive campaign speech. In addition, the Article examines NLRB cases involving picketing employees who voice racial slurs to minority workers who cross their line. The fact findings show that the NLRB tolerates almost all slurs and incitements. The Board’s permissive policy conflicts with Title VII’s standard for racial harassment under Harris v. Forklift Systems, Inc. This Article suggests that in cases where racist speech is an issue, the NLRB should use Title VII’s standard for a hostile work environment. Without making this policy change, the National Labor Relations Act opens the door for white nationalists to promote racial preference and re-segregation in the workplace.


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Columbia Journal of Race and Law

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November 12, 2018