Federal, state and local governments as well as the Equal Employment Opportunity Commission (EEOC) are all talking about sexual harassment. The federal government is focused on settlement disclosures, arbitration agreements and tax deduction denial. States are proposing restricting nondisclosure agreements and requiring anti-sexual harassment training and policies. The EEOC proposed new enforcement guidance outlining legally protected characteristics and liability standards for employers as well as a threshold for hostile workplace and training considerations. Like the EEOC guidance, most of these initiatives have yet to be enacted.
Along comes the National Labor Relations Board (NLRB) decision in the Boeing Co., 365 NLRB No. 154(2017) saying policies requiring civility in the workplace are now lawful. This decision is a new perspective flying in the face of their previous Lutheran Heritage decision that chilled employers’ ability to require “nice.” The Lutheran Heritage decision prohibited any employer rule that might interfere with an employee’s right to protected, concerted activity; the right to complain about work conditions and potentially organize. Since that 2004 decision, employee handbooks and rules have been scrutinized to leave out or carefully craft rules prohibiting negativity, disparagement or harassment.