In the wake of actions taken by the National Labor Relations Board in 2012, employers face a Hobson’s choice between taking advantage of longstanding protections against Title VII litigation and violating Section 7 of the National Labor Relations Act.
It has become standard practice for employers to create and maintain robust internal reporting procedures and policies in order to handle employee complaints under Title VII. In the wake of two seminal U.S. Supreme Court sexual harassment decisions in the late 1990s establishing a new employer affirmative defense (Faragher v. City of Boca Raton, 524 U.S. 775 [1998], and Burlington Industries Inc. v. Ellerth, 524 U.S. 742 [1998]), employers routinely began to incorporate such reporting requirements in employee handbooks, codes of conduct and social media policies.
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