Diversity, equity, and exclusion: How the NLRB’s double standard on job-related speech hurts workers

The National Labor Relations Act (NLRA) is supposed to protect workers who publicly raise questions about the policies in their workplace. A few recent cases show that there is one big exception to that: questioning your employer’s diversity policies. Workers can be summarily fired for merely questioning whether the policies are a good idea – regardless of whether of whether they do so at work or outside of it.

The Wall Street Journal recently ran a column titled “DEI Got Me Sacked From My Nursing Job,” by Brad McDowell. DEI is shorthand for Diversity, Equity, and Inclusion. McDowell, a supervisor of nurses at a Maryland hospital, says he objected to a DEI-related training course that “implied that white nurses like me are killing black mothers. I was supposed to internalize this message and somehow apply it to the management of my team.”

McDowell eventually became fed-up with the “mounting politization” at the hospital and wrote about his frustrations on his personal Facebook page. “No employer has the right to invade the unconscious spaces of it’s [sic] employees minds in an attempt to reprogram them into thinking certain ways. If your employer signs you up for an ‘Unconscious Bias’ aka ‘Implicit Bias’ training, then they are doing exactly that,” he stated.

The Facebook post did not mention the employer or anyone at his job. That didn’t matter. Openly questioning the DEI policy was grounds for firing, the hospital HR director told him, because the comments were “offensive” and could be viewed as “misleading or false.”

McDowell does not say whether he belongs to a union and does not mention the NLRA in the op-ed but the law would, at least in theory, offer him some protection. Section 7 of the law says, “Employees shall have the right … to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.“ The National Labor Relations Board (NLRB), the agency that enforces the NLRA, interprets this as “the right to act together to try to improve their pay and working conditions.”

This can include Facebook posts criticizing the employer’s policies, as in the 2014 case “Hispanics United of Buffalo.” The NLRB required the employer to re-hire five workers who had been dismissed for “post[ing] comments on Facebook concerning working conditions.”

A company’s diversity policy would certainly impact its working conditions. McDowell certainly felt that was the case. Wouldn’t his comments about the DEI policy therefore also be protected?

Probably not. The NLRB weighed in a decade ago on a similar case in which a then-Google employee named James Damore published an essay criticizing the company’s diversity policy and was subsequently fired. Damore, a software engineer, complained about his firing to the NLRB, arguing that his essay was an attempt to start “an open and honest discussion about the costs and benefits of our diversity programs.” The fact that Damore had made a point of distributing the essay ought to have weighed in his favor because that showed he was trying to communicate with co-workers about the policies that they worked under.

A NLRB administrative law judge (ALJ) shot down Damore’s argument. The ALJ said Google was right to fire him because the memo’s statements were “discriminatory and constituted sexual harassment, notwithstanding effort to cloak comments with ‘scientific’ references and analysis, and notwithstanding ‘not all women’ disclaimers.” In short, the mere act of trying to talk about the policy constituted harassment of female co-workers.

Granted, these cases do not involve union organizing efforts and, to play devil’s advocate, some critics would probably argue that preventing a hostile workplace trumps any workers’ need to criticize the underlying policy. The irony there is that the NLRB believes that under certain circumstances the NLRA does protect workers who are verbally hostile to their co-workers.

The NLRB in 2020 required Amazon to reinstate a male worker who had used a bullhorn to call a female colleague a “gutter bitch” and “crack ho,” among other misogynistic insults. The bullhorn-wielding worker had been engaged in a one-man union protest when the female co-worker told him to quiet down. The union activist replied with a string of insults that would be clear proof of a hostile workplace under any other circumstances. The NLRB nevertheless sided with the union activist, as it usually has in such situations. The board has long believed that allowances must be made for heated rhetoric when workers are engaged union-related activities.

So, you cannot question a workplace diversity policy publicly at work and you cannot criticize the policy outside of work in the private-yet-public world of social media. Either one can get you fired for creating a hostile work environment. But a male worker can be openly hostile and insulting to female co-workers if the man is affiliated with a union.

This is definitely an area that Congress should straighten out. Lawmakers should amend the NLRA to clarify that workers have a right to question all workplace policies without fear of reprisal as well as to ensure that the NLRB’s policies don’t conflict with those of the Equal Employment Opportunity Commission (EEOC).