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Brief of the Equal Employment Opportunity Commission As Amicus Curiae

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Brief of the Equal Employment Opportunity Commission As Amicus Curiae UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD GENERAL MOTORS LLC, ) ) and ) Cases. 14-CA-197985 & ) 14-CA-208242 CHARLES ROBINSON, ) ) ) __________________________________________) BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE SHARON FAST GUSTAFSON EQUAL EMPLOYMENT General Counsel OPPORTUNITY COMMISSION Office of General Counsel JENNIFER S. GOLDSTEIN 131 M St. N.E., 5th Fl. Associate General Counsel Washington, D.C. 20507 (202) 663-4724 ANNE NOEL OCCHIALINO [email protected] Senior Appellate Attorney TABLE OF CONTENTS Table of Authorities ........................................................................................................................ ii Identity of Amicus Curiae ................................................................................................................1 Introduction ......................................................................................................................................1 Statement of the Case .......................................................................................................................2 A. Statutory Frameworks ........................................................................................................2 B. Facts ...................................................................................................................................2 C. Decision of the Administrative Law Judge ........................................................................4 D. General Motors’ Exceptions Brief and Notice and Invitation to File Amicus Briefs ........5 Argument .........................................................................................................................................7 Employers should be able to address offensive statements or conduct that violate, or may violate, Title VII or other federal antidiscrimination laws. ............................................7 A. Title VII and other federal antidiscrimination statutes. .....................................................7 1. Standard for a hostile work environment ...................................................................7 2. Employer liability for harassment. ...........................................................................17 B. Employers should be able to address sexist or racist conduct. .........................................21 C. Retaliation principles may provide a useful analogy. ......................................................23 Conclusion .....................................................................................................................................24 Certificate of Compliance ............................................................................................................C-1 Certificate of Service ...................................................................................................................C-2 TABLE OF AUTHORITIES Page(s) Cases Abramson v. William Paterson Coll., 260 F.3d 265 (3d Cir. 2001).......................................................................................................8 Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240 (11th Cir. 2014) .........................................................................................10, 15 Airo Die Casting, Inc., 347 NLRB 810 (2006) .......................................................................................................21, 22 Am. Ship Bldg. Co. v. NLRB, 380 U.S. 300 (1965) ...................................................................................................................2 Atlantic Steel, 245 NLRB 814 (1979) ...........................................................................................................4, 5 Ayissi–Etoh v. Fannie Mae, 712 F.3d 572 (D.C. Cir. 2013) .................................................................................................15 Bailey v. Runyon, 167 F.3d 466 (1999) .................................................................................................................20 Boyer-Liberto v. Fountainebleau Corp., 786 F.3d 264 (4th Cir. 2015) (en banc) .............................................................................10, 15 Brown v. Middaugh, 41 F. Supp. 2d 172 (N.D.N.Y. 1999) .......................................................................................20 Burkes v. Holder, 953 F. Supp. 2d 167 (D.D.C. 2013) .........................................................................................16 Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) ...........................................................................................................10, 17 Castleberry v. STI Grp., 863 F.3d 259 (3d Cir. 2017).....................................................................................................15 Clear Pine Moldings, 268 NLRB 1044 (1984), enfd. 765 F.2d 148 (9th Cir. 1985) ..............................................6, 22 Consolidated Commc’ns, Inc. v. NLRB, 837 F.3d 1 (D.C. Cir. 2016) .......................................................................................................3 ii Cooper Tire, 363 NLRB No. 194 (2016), enfd. 866 F.3d 885 (8th Cir. 2017) .........................................6, 21 Costrini v. Kroger Co. of Mich., No. 17-13688, slip op. (E.D. Mich. Sept. 10, 2019) ................................................................13 Crowley v. L.L. Bean, Inc., 303 F.3d 387 (1st Cir. 2002) ....................................................................................................14 Davis-Garett v. Urban Outfitters, Inc., 921 F.3d 30 (2d Cir. 2019).........................................................................................................8 Dediol v. Best Chevrolet, Inc., 655 F.3d 435 (5th Cir. 2011) .....................................................................................................9 Detroit Newspapers, 342 NLRB 223 (2004) .............................................................................................................21 Diaz v. Swift-Eckrich, Inc., 318 F.3d 796 (8th Cir. 2003) ...............................................................................................8, 11 Doe v. Oberweis Dairy, 456 F.3d 704 (7th Cir. 2006) .............................................................................................17, 18 EEOC v. Fairbrook Med. Clinic, P.A., 609 F.3d 320 (4th Cir. 2010) .............................................................................................11, 12 EEOC v. Pioneer Hotel, Inc., No. 11-1588, 2013 WL 3716447 (D. Nev. July 15, 2013) ........................................................8 EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306 (4th Cir. 2008) ...............................................................................................8, 12 Ellis v. CCA of Tenn. LLC, 650 F.3d 640 (7th Cir. 2011) ...................................................................................................11 Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991) ...................................................................................................15 Engel v. Rapid City Sch. Dist., 506 F.3d 1118 (8th Cir. 2007) .................................................................................................20 Erickson v. Wis. Dep’t of Corr., 469 F.3d 600 (7th Cir. 2006) ...................................................................................................18 Faragher v. City of Boca Raton, 524 U.S. 775 (1998) ...........................................................................................................17, 18 iii Fox v. Costco Wholesale Corp., 918 F.3d 65 (2d Cir. 2019).........................................................................................................9 Franchina v. City of Providence, 881 F.3d 32 (1st Cir. 2018) ......................................................................................................10 Fresenius USA Mfg., Inc., 358 NLRB 1261 (2012) ...........................................................................................................21 Fresenius USA Mfg., Inc., 362 NLRB 1065 (2015) ...........................................................................................................22 General Motors LLC and Charles Robinson, 368 NLRB No. 68, 2019 WL 4240696 (2019) ................................................................ passim General Motors LLC and Charles Robinson, an Individual, 2018 WL 4489341, No. 14-CA-197985 (NLRB Div. of Judges) (Sept. 18, 2018) ................................................................................................................................ passim Gerald v. Univ. of P.R., 707 F.3d 7 (1st Cir. 2013) ........................................................................................................16 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) .....................................................................................................................9 Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321 (6th Cir. 2008) ...................................................................................................20 Henry v. CorpCar Servs. Houston, Ltd., 625 F. App’x 607 (5th Cir. 2015) ............................................................................................15 Hollins v. Delta Airlines, 238 F.3d 1255 (10th Cir. 2001) ...............................................................................................18 Howley v. Town of Stratford,
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