Following last night’s uber-contentious presidential debate, water-cooler chatter was presumably quite lively this morning at many companies.
Earnest conversations about current events can contribute to productive bonding among employees. At the same time, companies should walk the proverbial fine line when it comes to topics, such as this year’s impending election, that have emotions running high, according to employment attorney Jacob Oslick of law firm Seyfarth Shaw.
“Political tensions can create unnecessary conflict in the workplace and pose risks to employers,” Oslick says. “Employers should convey to employees that, if they want to discuss politics in the workplace, they should be tolerant, civil, and non-derogatory toward people who think differently from them.”
Really? Dictate how people should express their opinions? Is that even possible?
Certainly, says Oslick. “Employers have for decades been regulating employees’ speech about religion and racial or ethnic groups over concerns regarding anti-discrimination laws,” he notes. “They would not tolerate someone who goes around making incredibly disparaging remarks about such groups. It should be no different here. Very controversial political opinions can, rightly or wrongly, be considered as evidence of a hostile work environment.”
On the other hand, companies don’t legally have to tolerate an employee’s political beliefs even if expressed politely. Holding particular beliefs doesn’t qualify someone for inclusion in any protected group under federal law. In other words, a company can fire an employee for such beliefs.
(The First Amendment, which addresses government actions toward citizens, does not apply to employer actions toward employees. A Connecticut law, though, prohibits “discipline or discharge” based on an employee’s exercise of rights guaranteed by the First Amendment.)
Of course, not everything that’s legal is a good business practice. For example, a company that fires employees over their political beliefs may not be viewed as a good company to work for. Employers should remind managers and supervisors to assess employees based on their work and not their political beliefs, says Oslick.
Further, managers and supervisors should be especially cautioned not to express strong opinions in a derogatory manner about politics.
“If there is a lot of tension at work, with managers or supervisors making very hostile comments about Republicans or Democrats, liberals or conservatives, it could create an inference that they have some kind of discriminatory motive, should an employment decision [such as a termination] later be made regarding an employee who happens to be a member of whatever group a manager or supervisor disfavors,” the attorney says.
One thing employers may not legally do, at least in New York, is discriminate against employees based on political activities (running for office, campaigning for a candidate, or participating in fund-raising activities) conducted outside the workplace.
Further, New York employers cannot discriminate based on an employee’s lawful recreational activities outside the workplace, “which could include various kinds of informal political activism such as posts on Facebook for or against a candidate,” says Oslick.
And, under the Civil Rights Act of 1871, two or more persons — which, based on the legal definition of “person” could include, say, a company and its CEO — cannot force, intimidate, or threaten anyone into voting for a particular candidate for president, vice president, or Congress. (See our 2012 article on coercive tactics some companies used to drum up votes for then-presidential candidate Mitt Romney.)
Oslick stresses that he doesn’t advocate for employers to prohibit all political discussion in the workplace. “I would have legal concerns about such a policy as well,” he notes.
Meanwhile, some discrimination cases brought based on racial or other grounds may have political overtones.
In a recent case that made headlines, a U.S. Postal Service employee filed a complaint with the Equal Employment Opportunity Commission, alleging that he was “subjected to discrimination on the basis of race and in reprisal for prior EEO activity when … a coworker repeatedly wore a cap to work with an insignia of the Gadsden Flag,” which depicts a coiled rattlesnake and the phrase, “Don’t Tread on Me.”
The stated rationale for the claim was that the cap was racially offensive to African-Americans because the flag was designed during the Revolutionary War by Christopher Gadsden, a slave trader and an owner of slaves.
The EEOC found no liability by the Postal Service, but that shouldn’t provide comfort for employers, according to Oslick. “What concerns them is not the risk that ultimately a jury will rule against them so much as the risk that they can become stuck in very burdensome and expensive discovery,” he says.