William and Mary Law Review, Vol. 39, No. 1 (October 1997), pp. 99-156


This Article explores the concept of discrimination under the NLRA [National Labor Relations Act]. Specifically, it examines discrimination under the statute through the lens of Title VII, an approach that brings a fresh perspective to doctrine long considered settled. The purpose of this comparison is to explore the extent to which Title VII's discrimination concepts make sense under the NLRA. This analysis focuses on three specific areas. First, it examines discrimination cases under section 8(a)(1), concluding that the lower courts are wrong to apply Title VII concepts and to insist that without disparate treatment of union activities, no unlawful discrimination has occurred. Title VII contains no exact counterpart to section 8(a)(1). Judicial insistence that discrimination under that section fit withing Title VII's disparate treatment of disparate impact paradigms reflects an inadequate understanding of the role section 8(a)(1) plays in the NLRA's statutory scheme. Second, the article contrasts the "animus" requirement of section 8(a)(3) with unlawful motive under Title VII. The two are not synonymous. Frequently, employment decisions overtly based on union activities are not considered unlawfully motivated under the NLRA, even though employment decisions premised on race or gender rarely will be lawful under Title VII. The NLRA's language and structure, however, require its distinctive approach to animus, an approach inconsistent with the wording and the purposes of Title VII. Third the article considers "systematic" claims of discrimination under section 8(a)(3)--those involving an employer's structural decisions and its use of economic weapons. In this area, borrowing from Title VII would be useful, although it has not as yet occurred. When no animus is present, these cases should be considered under disparate impact doctrine. Indeed, the Court's section 8(a)(3) jurisprudence, a confusing and immature amalgam of treatment and impact theory, could be discarded and profitably replaced by Title VII's analytical structure. The objective of this Article is to provide a theoretical framework for thinking about discrimination concepts under the NLRA in a way that recognizes the inevitable influence of Title VII doctrine. In lieu of the hit-or-miss borrowing from Title VII that occurs today, this Article offers a blueprint for developing a more unified and analytically coherent approach to unlawful discrimination under the NLRA.