Slurred Speech: How the NLRB Tolerates Racism

A company supervisor, trying to dissuade employees from voting for a union said, “Don’t you know if you all get the union up here you’ll be sitting up here by niggers?” Unions also play the race card in vulgar ways. Trying to drum up votes, a union representative falsely told workers that a manager referred to them as a “bunch of niggers.” Both times the race card was used, it worked: In the first case, a union was defeated; in the second case, a union was elected.

My research article, “Slurred Speech: How the NLRB Tolerates Racism,” shows how the nation’s labor board is too lenient with racial slurs used in the context of elections for unions and also strikes. Columbia Journal of Race and Law will publish this research later this year.

For example, the NLRB ordered a company to reinstate—with backpay— a striking employee who intimidated a replacement worker by extending both middle fingers while screaming “fuck you, nigger.”

This has to stop. Title VII—the nation’s employment discrimination law— makes employers liable for tolerating these racial slurs.

In effect, employers have to make an awful choice: face penalties from the NLRB, or from the EEOC. I argue that the NLRB should use the EEOC’s standard for racial harassment.

My research also presents evidence showing how expensive liability is for employers when they tolerate racial slurs.

Chart 5 EEOC Settlements & Court Judgments, 2009-2017 (Ranked by Expense to Employers)

$14,500,000 Settlement (Patterson-UTI Drilling, 4/20/2015): Minority Employees Subjected to Racial & Ethnic Slurs & Jokes, & Fired for Complaining $11,000,000 Decree (YRC/Yellow Transportation, 6/29/2012): Black Employees Subjected to Nooses, Racist Graffiti and Epithets, Harsher Discipline, & Tougher Work Assignments $8,900,000 Settlement (Albertsons, 12/15/2009): Employees Subjected to Swastikas, Lynching Drawings, Epithets, White Supremacist, and Anti-Immigrant Comments $4,000,000 Settlement (Hillshire Bros. Co., 12/22/2015) Blacks Subjected to Racist Comments/Graffiti $2,750,000 Settlement  (WRS Compass, 8/27/2012) Black Workers Harassed with Nooses & Slurs, Plus Harassment of White Workers Who Associated with Blacks $2,000,000 Consent Decree (Blockbuster Inc., 12/14/2011) Hostile Environment for Female and Hispanic Workers, Including Racial Remarks $1,200,000 Settlement (Well Servicing Companies, 12/2/2004): Minorities Verbally Abused and Punished $1,073,261 Damages (Whirlpool, 4/1/2011) Verbal/Physical Attack Due to Race and Gender $1,000,000 Settlement (Elmer W. Davis, Inc., 8/10/2010) Black Employees Called “n----r,” “lazy n-----rs,” “sambo,” “slave,” “monkey”; Exposed to Nooses & Swastikas $650,000 Settlement (Race, LLC/Studsvik, 12/31/2009) Targeting Black Workers for Higher Radiation Exposure, and Subjecting Them to Racial Slurs $630,000 Settlement (Scully Distribution, 8/27/2012) Drivers Subjected to Racial Slurs $600,000 Settlement (Mercury Air Centers, 8/9/2010) Filipino and Hispanics Barraged with Slurs $500,000 Settlement (RockTenn Services, 12/3/2012) Employees Subjected to Racist Graffiti, Noose, and Employer Ignoring of Complaints $400,000 Settlement (Big Lots, 2/16/2010) Black Employees Subjected to Racial Jokes $250,000 Settlement (Swissport Fueling, 12/2/2014) Employees Repeatedly Called “Monkeys” $243,000 Judgment (A.C. Widenhouse, 3/8/2013) Blacks Face Racial Slurs and Nooses, Retaliation $228,000 Settlement (Titan Waste Services, 3/14/2014) Black Employee Subjected to “N-word,” Discharged $180,000 Settlement (Emmert Int’l, 1/7/2013) Employee Subjected to Regular Use of “N-Word,” Racial Jokes and Retaliation for Complaining $150,000 Settlement (Torqued-Up Energy, 5/28/2013) Employee Fired for Reporting Racial Slurs $122,500 Settlement (Pace Services, L.P., 4/22/2010) Muslim, Black and Hispanic Employees Repeatedly called “Terrorist,” “Taliban,” “Osama,” “Al-Qaeda,” “n----s,” & “f-----g Mexicans” $120,000 Settlement (Downhole Technology, 4/26/2017) Black Employee Fired for Complaining that Co-Worker Wore KKK Hood $118,000 Settlement  (Professional Building Systems of N.C., 4/8/2010) Black Employees Subjected to “n-word,” Nooses, and Racially Offensive Pictures $150,000 Settlement (Affordable Care, Inc., 6/2/2010) Harasser Said He Had KKK Relative $100,000 Settlement (McGriff Industries, Inc., 7/1/2010) Black and White Employees Routinely Subjected to Racially Derogatory Comments, Slurs, and Insults Directed at or About African-Americans $87,205 Settlement (Mike Enyart & Sons, 10/6/2010) Black Employee Fired After Complaining About Racial Epithets and Swastika $80,000 Settlement (Mel-K Mgt. Co., 8/28/2015) Blacks Subjected to “n----r”, “ho” & “black b----h” $50,000 Settlement (OnSite Solutions, LLC, 11/2/2016 Manager Used Code Language (“Sprinkle a Little Salt”) to Fire Blacks and Replace with Whites