August 28, 2016
If you think that work is going to be your reprieve from the incessant political pontification of your friends on Facebook and social media, think again. No one could have predicted the 2016 Election’s trajectory. Most in the media and the public thought Trump’s candidacy was a joke and that he would drop out. They were wrong. His inflammatory rhetoric has sparked a highly charged debate with deep passions raging on both sides. People who normally stay silent or ignore politics are weighing in on social media and at work. High emotions and strong divergent opinions can result in heated discord between employees and decreased productivity. An employer’s obligation to manage political speech at work depends on whether the employer is a public employer or a private employer. Here is the law:
The First Amendment protects the government from infringing on your speech. It does not prohibit private employers from taking negative employment actions, including termination against you for your political speech. A few states (like New York and California) have anti-discrimination laws protecting employees for political activity and/or affiliation. Colorado and North Dakota protect employees from discrimination for “lawful conduct outside of work.” There are a few cities that have laws which prevent private employers from discriminating based on political ideology. Unions are typically politically active and often their contracts protect their members who engage in political activity.
In a recent Supreme Court decision, Hefferson v. City of Paterson, a 20-year veteran police officer sued the City of Paterson, N.J. after the police department demoted him for being seen with a political opponent’s sign. The Department Supervisors supported the Mayoral incumbent. The officer, who was unable to vote in the election due to residency, was seen with a lawn sign for the Mayoral Challenger. The officer had gotten the sign for his bedridden mother. The Court held that public employees may challenge retaliatory actions by a public employer for an employee’s political activity.
Workplaces are diverse environments. Employers need to monitor whether one person’s political speech begins to create a discriminatory environment for other employees. Speaking out in favor of Donald Trump’s characterizations of people of Mexican decent, or railing against Muslims in response to the tragic shootings in Orlando could create a hostile work environment for employees who are of Mexican heritage or who are Muslims. Just because it is election time does not mean that the federal law, Title VII and state anti-discrimination laws go away. Employers can remind employees of their anti-discrimination policies and that engaging in political speech does not give one the right to discriminate or bully employees that have different beliefs or are part of a protected class.
There is a type of political speech that private employers cannot curtail: discussion of workplace conditions. A discussion that involves how political candidates would affect working conditions would be political speech that is protected by the National Labor Relations Act.
Political discussion (especially during a contentious election year) cannot be completely avoided, even at work. However, it is best for everyone to be respectful of different points of view when speaking freely about our political beliefs and opinions.