At long last, America’s job creators can fully protect their workers from racist, sexist, and other harassing verbal attacks.
It’s a shock that that sentence has to be written in the year 2026. The Civil Rights Act, which was supposed to end harassing language in the workplace, has been the law of the land since 1964. But since the late 1970s, the National Labor Relations Board has almost continuously given labor unions a carve-out. Most recently, a Biden-era NLRB ruling in 2023 allowed unions and their allies to use offensive language, so long as it happens in the context of “union activity.”
Thankfully, on Sept. 23, the NLRB closed this loophole and gave workers the full protection they deserve. Employers can now consistently discipline harassing and offensive conduct. Workers across America have been waiting for this day for years.
It’s hard to overstate the level of injustice that workers have faced. The NLRB has given unions a green light to use some of the most offensive language imaginable. In one recent unionization campaign, a picketing worker called a colleague a “crack ho” and “queen of the slums,” among other sexist insults. The employer understandably fired the employee for “bullying, cursing at, and defaming a female co-worker.” But the NLRB ordered the employer to rehire the worker who verbally attacked his colleague, saying the language was legally protected.
If only that were the worst example. As my organization documented in a study two years ago, the NLRB’s loophole protected a white picketer who called a black security guard a racial epithet. Another striking worker, also white, was legally allowed to use racist taunts against black replacement workers. Over and over, union organizers, members, and supporters have been caught using both racist and sexist language that should never be tolerated. Yet because the attacks happened in conjunction with union activity, they were allowed, and the offenders were spared punishment.
No worker should ever be subjected to such vile attacks. By the same token, employers do not want to tolerate such offensive language. They know it’s wrong and harmful to workers. They also know it opens them up to legal liability under Title VII of the Civil Rights Act. Yet the NLRB has forced their hand, pointing to Section 7 of the National Labor Relations Act, which says that employees have the right “to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection.” But that doesn’t mean they can safely use racial slurs or sexist insults. It simply means they can strike, protest, and do other activities that are obviously union related.
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The NLRB deserves praise for finally righting this wrong. It’s the first Biden-era decision the board has abandoned, and it’s welcome news for American workers, all of whom deserve to be safe from offensive and harassing verbal attacks. But a future NLRB could bring back the old standard, like the Biden-era board did in 2023. Workers need a federal law to prevent that from ever happening. Sen. Tommy Tuberville (R-AL) has sponsored the “Protection on the Picket Line Act,” which would clarify that disciplining harassment isn’t an unfair labor practice, period. In other words, no union carveout.
The NLRB has stood up for workers — now Congress must do the same. It’s unconscionable that even in 2026, workers have been subjected to such horrific and insulting verbal attacks. That was supposed to end in the 20th century under the Civil Rights Act. For the sake of workers, it’s time to finish the job in the 21st century.
F. Vincent Vernuccio is president of the Institute for the American Worker.