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While the presidential debates have earned record television ratings and have been hotly contested, employees should be discouraged from engaging their colleagues in heated political debates of their own. Supervisors in particular should not share their political beliefs with employees, legal experts say.
Some of presidential candidate Donald Trump’s statements—regarding immigration, people with disabilities and women—could raise concerns in the workplace if they are favorably repeated by a supervisor, said Jennifer Rubin, an attorney with Mintz Levin in San Diego. “Employers need to remember that when a supervisor speaks in the workplace, for purposes of the anti-discrimination statutes, the supervisor may be deemed to be speaking for the company,” she said.
Regardless of which candidate a supervisor supports, “Care must be taken to avoid the implicit or explicit suggestion that voting choices or political leaning in one direction or another are expectations of continued employment,” Rubin noted.
Debates over Terrorism
Discussions about how the candidates plan to respond to terrorism can be particularly divisive.
“Donald Trump has made news recently regarding his proposal to temporarily prohibit Muslims from entering the country,” noted Nathaniel Glasser, an attorney with Epstein Becker Green. “Favorable repetition of these claims may result in inappropriate workplace conversations and may lead some employees to perceive a hostile work environment.”
The attacks in Paris and San Bernardino, Calif., have raised concerns about workplace protections for all employees, but especially those who are Muslim, noted the Equal Employment Opportunity Commission (EEOC) in its Dec. 23, 2015, guidance, Questions and Answers for Employers: Responsibilities Concerning the Employment of Individuals Who Are, or Are Perceived to Be, Muslim or Middle Eastern.
Unlawful name-calling may arise as a result of such top-of-mind concerns as terrorism. In its guidance, the EEOC hypothesized that an employee who calls an Arab-American names like “the local terrorist” and “ISIS” is engaging in harassment. The EEOC noted that under Title VII of the Civil Rights Act of 1964, “managers and supervisors who learn about objectionable workplace conduct based on religion or national origin are responsible for promptly taking steps to correct the conduct by anyone under their control.”
The document noted that corrective action for workplace harassment “could include counseling, a warning or more severe discipline for the harasser.”
“While a spirited debate may be had among employees about how to best address and prevent terrorism, where the debate veers toward discriminatory or inappropriate language—even if espoused by a presidential candidate—employers should act to eliminate such language, particularly in response to a complaint,” Glasser said.
Other Contentious Conversations
Glasser also said, “Comments differentiating Hillary Clinton on the basis of her sex may also be perceived as discriminatory.” Glasser recommended that if sexist comments creep into the discussion, then employers should take prompt corrective action to prevent a potential hostile work environment.
“Repeating comments that implicate protected characteristics in a hostile or harassing manner can implicate anti-harassment laws if those comments are sufficiently severe or pervasive,” noted Sheena Hamilton, an attorney with Dowd Bennett in St. Louis.
But be aware that employees may have the right to air some opinions at work. A group of employees discussing health care benefits may, for example, have a protected conversation under the National Labor Relations Act (NLRA), said Hamilton. She explained that the conversation might be protected, concerted activity under Section 7 of the NLRA.
Protection for Political Views
While employers may seek to limit political discussion at work, a few jurisdictions—such as the states of California and New York, and Washington, D.C.—have enacted laws that protect employees from discrimination based on political activities or affiliations, Hamilton said.
The First Amendment guarantee of free speech applies to governmental employers, but not employers in the private sector, she noted. “Most union workers have negotiated the right to free speech because their collective bargaining agreements require specifically enumerated infraction to warrant a ‘for cause’ disciplinary action or discharge,” Hamilton said.
In California, Labor Code Section 1101 prohibits an employer from having any rule that forbids employees from engaging in politics outside the workplace or that directs the political activities of employees, observed Tamara Devitt, an attorney with Haynes and Boone in Orange County and Silicon Valley, Calif.
California and other states prohibit employers from retaliating against an employee for engaging in lawful “off-duty” conduct that occurs during nonworking hours away from the employer’s premises, such as supporting a political candidate or voicing a viewpoint inconsistent with the political views of the employer.
That said, an employer in the private sector may limit political conversation at the water cooler and require an employee to remove posters supporting a specific candidate from his or her workstation, Devitt observed.
“Of course, banning all political discussions at work may be bad for employee morale,” Glasser noted.
If banning political discussion at work, “employers need to be careful to ensure the rule against such expression is evenhanded, business-related and applied uniformly,” Devitt stated.
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.
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