Insight

Section 7 v. Title VII = Heavyweight Match

In Cooper Tire & Rubber Company v. NLRB (Case 08–CA–087155), a bargaining unit employee yelled racist statements to African-American replacement workers while he was on a picket line.

Cooper Tire v NLRB
Ann Holden Kendell

Ann Holden Kendell

February 28, 2017 08:43 AM

In Cooper Tire & Rubber Company v. NLRB (Case 08–CA–087155), a bargaining unit employee yelled racist statements to African-American replacement workers while he was on a picket line. These comments included: “Hey, did you bring enough KFC for everyone?” and “Hey, anybody smell that? I smell fried chicken and watermelon.”

The employee was fired for making these statements and he filed a grievance. The union filed an unfair labor practice charge against the employer alleging that the employee was discharged for exercising his Section 7 rights under the National Labor Relations Act (NLRA). The matter was submitted to an arbitrator who found that the employee made both statements, that the comments violated the employer’s harassment policy and denied the grievance – determining that the employee was terminated for “just cause.” The matter went before an administrative law judge (ALJ) who found that the arbitrator’s decision went against the NLRA. The ALJ decision was appealed to the National Labor Relations Board (NLRB). The NLRB agreed with the ALJ and found that the discharge for the racist comments was in violation of the NLRA and ordered the employer to reinstate the employee with full back pay. The case is currently pending in the U.S. Court of Appeals for the Eighth Circuit.

SECTION 7 of the NLRA provides employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." While the NLRB noted in its decision that the “statements most certainly were racist, offensive, and reprehensible,” they were still protected by the NLRA.

Title VII of the Civil Rights Act of 1964 (Title VII) protects employees by:

  • making it illegal to discriminate against on the basis of race, color, religion, national origin, or sex;
  • making it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit; and
  • requiring employers to reasonably accommodate applicants' and employees' sincerely held religious practices, unless doing so would impose an undue hardship on the operation of the employer's business

Title VII is enforced by the U.S. Equal Employment Opportunity Commission (EEOC), as well as through claims brought in court by private litigants. Employers violate Title VII by requiring employees to work in a racially hostile environment―even if the behavior occurred on a picket line.

This is not the first time that Section 7 and Title VII have been in conflict. Within the past two years, the NLRB issued decisions establishing that employers are limited on the confidentiality of witness statements in harassment investigations (a general interest in maintaining the confidentiality of company investigations or avoiding harassment and intimidation of employees was not sufficient to support a refusal to provide the information) and that an employer’s policy requiring confidentiality in investigations will violate Section 7. However, under Title VII, the EEOC has issued on action for harassment, stating that employers should “have a procedure for resolving ... harassment complaints,” which is “designed to ‘encourage victims of harassment to come forward’" and should “ensure confidentiality as much as possible.”

What to Watch: If one were to wager on this match, Title VII is the contender. The Eighth Circuit is the same court that found behavior on a picket line may constitute a racially hostile work environment under Title VII.

Trending Articles

2025 Best Lawyers Awards Announced: Honoring Outstanding Legal Professionals Across the U.S.


by Jennifer Verta

Introducing the 31st edition of The Best Lawyers in America and the fifth edition of Best Lawyers: Ones to Watch in America.

Digital map of the United States illuminated by numerous bright lights

Unveiling the 2025 Best Lawyers Awards Canada: Celebrating Legal Excellence


by Jennifer Verta

Presenting the 19th edition of The Best Lawyers in Canada and the 4th edition of Best Lawyers: Ones to Watch in Canada.

Digital map of Canadathis on illuminated by numerous bright lights

Legal Distinction on Display: 15th Edition of The Best Lawyers in France™


by Best Lawyers

The industry’s best lawyers and firms working in France are revealed in the newly released, comprehensive the 15th Edition of The Best Lawyers in France™.

French flag in front of country's outline

Announcing the 13th Edition of Best Lawyers Rankings in the United Kingdom


by Best Lawyers

Best Lawyers is proud to announce the newest edition of legal rankings in the United Kingdom, marking the 13th consecutive edition of awards in the country.

British flag in front of country's outline

Announcing the 16th Edition of the Best Lawyers in Germany Rankings


by Best Lawyers

Best Lawyers announces the 16th edition of The Best Lawyers in Germany™, featuring a unique set of rankings that highlights Germany's top legal talent.

German flag in front of country's outline

Prop 36 California 2024: California’s Path to Stricter Sentencing and Criminal Justice Reform


by Jennifer Verta

Explore how Prop 36 could shape California's sentencing laws and justice reform.

Illustrated Hands Breaking Chains Against a Bright Red Background

Celebrating Excellence in Law: 11th Edition of Best Lawyers in Italy™


by Best Lawyers

Best Lawyers announces the 11th edition of The Best Lawyers in Italy™, which features an elite list of awards showcasing Italy's current legal talent.

Italian flag in front of country's outline

Combating Nuclear Verdicts: Empirically Supported Strategies to Deflate the Effects of Anchoring Bias


by Sloan L. Abernathy

Sometimes a verdict can be the difference between amicability and nuclear level developments. But what is anchoring bias and how can strategy combat this?

Lawyer speaking in courtroom with crowd and judge in the foreground

Things to Do Before a Car Accident Happens to You


by Ellie Shaffer

In a car accident, certain things are beyond the point of no return, while some are well within an individual's control. Here's how to stay legally prepared.

Car dashcam recording street ahead

Tampa Appeals Court ‘Sends Clear Message,” Ensuring School Tax Referendum Stays on Ballot


by Gregory Sirico

Hillsborough County's tax referendum is back on the 2024 ballot, promising $177 million for schools and empowering residents to decide the future of education.

Graduation cap in air surrounded by pencils and money

The Push and Pitfalls of New York’s Attempt to Expand Wrongful Death Recovery


by Elizabeth M. Midgley and V. Christopher Potenza

The New York State Legislature recently went about updating certain wrongful death provisions and how they can be carried out in the future. Here's the latest.

Red tape blocking off a section of street

Find the Best Lawyers for Your Needs


by Jennifer Verta

Discover how Best Lawyers simplifies the attorney search process.

A focused woman with dark hair wearing a green top and beige blazer, working on a tablet in a dimly

Key Developments and Trends in U.S. Commercial Litigation


by Justin Smulison

Whether it's multibillion-dollar water cleanliness verdicts or college athletes vying for the right to compensation, the state of litigation remains strong.

Basketball sits in front of stacks of money

Is Premises Liability the Same as Negligence?


by Jeremy Wilson and Taylor Rodney Marks

In today's age, we are always on the move, often inhabiting spaces we don't own. But what happens when someone else's property injures you or someone you know?

A pair of silhouetted legs falling down a hole with yellow background

Woman on a Mission


by Rebecca Blackwell

Baker Botts partner and intellectual property chair Christa Brown-Sanford discusses how she juggles work, personal life, being a mentor and leadership duties.

Woman in green dress crossing her arms and posing for headshot

Best Lawyers Celebrates Women in the Law: Ninth Edition


by Alliccia Odeyemi

Released in both print and digital form, Best Lawyers Ninth Edition of Women in the Law features stories of inspiring leadership and timely legal issues.

Lawyer in green dress stands with hands on table and cityscape in background