Political action and engagement has risen to a fever pitch in the months leading up to Election Day on Tuesday, and the ripples will affect American workplaces long after ballots have been cast.
For businesses in the private sector, this could mean defending against more discrimination lawsuits, depending on how they respond to workers’ political viewpoints.
Employees may be expected to leave their politics at the door, but that may be easier said than done as workplaces continue to divide themselves along political lines. More than half of workers who responded to a recent Randstad survey said they’d seen political discussions become heated arguments during the workday.
And people’s political views often are right out in the open. From Black Lives Matter to Make America Great Again, employees are wearing their political and social affiliations on their sleeves rather than close to the vest, both on the job and on social media. Interpersonal disagreements and tensions that stem from heated political viewpoints could create legal risks for companies in addition to negatively impacting workplace civility, productivity, and corporate reputation.
“We’ve gotten more calls in advance of the 2018 midterms than in years before,”
The Letter of the Law
Unlike government employers, private-sector companies for the most part may discipline or even fire employees because of their political views without violating federal law. There are no federal anti-discrimination protections based on political affiliation or speech.
That’s in part because a person’s political views aren’t an “immutable” characteristic—a part of their identity they can’t change, like race, biological sex, national origin, or disability. Nor are they a core trait of a person’s identity, such as someone’s religion.
However, some states and localities have passed laws to prohibit employers from discriminating against workers who participate in politics outside of work.
It’s unlawful for private employers in California, for example, to prevent their employees from “engaging or participating in politics” or running for office. California employers also can’t “control or direct” the political affiliations of their workers.
In New York, private employers aren’t allowed to retaliate against employees for “political activities” a worker engages in as long as the campaigning, fundraising, and canvassing take place off work premises and outside of work hours. And in the center of U.S. political life, Washington, D.C., it’s unlawful to discriminate or retaliate in terms of employment against workers based on their political affiliation.
However, those laws don’t protect workers who espouse intolerant viewpoints, Georgetown University Law Center professor Jamillah Williams said. She focuses on civil rights, discrimination, and labor and employment law. The local laws often define specific protected actions, not generalized speech about other communities a person may not like, Williams told Bloomberg Law.
That’s the blurred line in the infamous Google Memo dispute. James Damore’s labor and class action complaints allege he was fired for expressing his conservative viewpoints. But Google says he was fired for voicing sexist views about his female colleagues and disrupting the work environment.
When it comes to public employees, the rules are different. The First Amendment’s freedom-of-speech protection can be implicated if a government employer fires or disciplines workers for their political activities. But most workers don’t work for the government and so can’t claim freedom of speech if their private employer dings them for what they say or do in or out of the workplace.
It’s All Connected
The sticking point for employers, though, is that many contemporary political arguments tie back to categories that federal anti-discrimination law does protect.
Immigration debates at their core can center on national origin issues. The abortion rights debate can link back to a worker’s religious beliefs. And lesbian, gay, bisexual, and transgender rights can implicate sex bias in the workplace, an issue that still isn’t settled law among federal courts.
If a private employer disciplines a worker for getting politically inflamed at work about a topic that ties back to a protected category, that could trigger a bias or retaliation claim under touchstone federal statutes such as Title VII of the 1964 Civil Rights Act or the Americans with Disabilities Act, Williams said.
Since many individuals these days are passionate about their causes of choice, workplace arguments can get personal, fast.
“Emotions can take a conversation from disagreement to rage very quickly,” Weiss said.
Getting Social on and Off the Clock
The rise of social media and its links to the workplace particularly intrigue Ingrid Fredeen, vice president of online learning content at Navex Global, which produces software to assist businesses in meeting their legal and ethics compliance requirements.
Once used to engage and inform individuals, social media has been turned around and used as “crowdsourced justice,” she said.
For example, social media was used to identify individuals at the August 2017 Charlottesville, Va., riots and to get their employers to fire them, Fredeen noted.
Last week’s terrorist attack at a Pittsburgh synagogue was preceded by anti-Semitic comments made by the alleged perpetrator on social media site Gab.com.
When it comes to the intersection of employment law and social media, the law is still developing, Williams said. As the law stands today, employers can take disciplinary action against employees for their social media activity “as long as the comments are made in the public sphere and employers aren’t coercing their employees to grant them access to private online pages,” she said.
“Employers who don’t think they need to include political speech in their workplace trainings should go read the comments on those types of social media sites,” Fredeen said. “Those people have jobs. They’re employed somewhere. And some are likely working for you or with you.”
Consistent, Uniform Enforcement
The political divide is putting companies in an interesting position that requires particular thoughtfulness and a balanced approach, Weiss said.
An employer’s workplace rules should be equally applied and enforced, regardless of whether an employer agrees with one side or another, Fredeen said.
“If you fire someone because of threatening conduct at a Black Lives Matter rally, but don’t fire someone else who displays similar off-duty misconduct at a different kind of rally, you run the risk that the terminated employee will allege a racial bias for your termination,” she said.
“Organizations need to think through what the company value is that they’re trying to enforce. They need to be fair and equitable in enforcing the policies they set up to protect those company values and ensure that it is not enforced in a discriminatory way,” she said.