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Mind the Gap: Navigating the Line Between Political and Hate Speech and Workplace Acceptability

By Jay M. Dade

One “casual” Friday afternoon, one of your employees walks by wearing a cap emblazoned “America: Love it or Leave it.”  You groan inwardly; not another supporter of “that” candidate, you ask yourself.  You can’t resist and blurt out, “Great hat.; why do you hate immigrants?”  The employee casts you a shocked look but walks away silently.  You then proudly boast on your candidate’s Facebook page how you “stood up” to an oppressor.

The following Wednesday, you have to write up that same employee for her third unexcused absence in six months.  But, when you ask her to sign the warning, she accuses you of singling her out unfairly because she is a “proud white woman Tea Partier.”  She refuses to sign the warning, storms out of your office and files a complaint against you with HR.

Should you be concerned?  Did you cross a legal line?  Are you now at risk?  The short answer: Possibly.

“Political activity” and “political affiliation” are only protected statuses for certain employees and in certain locations.  Courts have held the First Amendment protects public employees from their employers using political affiliation on which to base employment decisions.  The Civil Service Reform Act of 1978 expressly prohibits political affiliation discrimination toward federal employees.  Moreover, some states (such as California, Louisiana, New York) and the District of Columbia, as well as cities (such as Lansing, Michigan; Madison, Wisconsin and Seattle, Washington), protect political affiliation similar to protections afforded race, sex, age and disability, even—importantly—for private sector employees.

Well, that’s good, you think.  You don’t work in any of those locations, so you’ll probably not have to worry about what you said.  Not necessarily.  Just because you don’t work in the federal sector or in the private sector in a state or municipality that protects private sector employees from political affiliation discrimination doesn’t mean you have carte blanche to speak your mind freely whenever a subordinate employee declares her support for a political candidate, party or cause.

Looming even for non-unionized employers is the National Labor Relations Act.  Under the NLRA, even non-unionized employees have the right to discuss workplace terms and conditions of employment.  Where a conversation between employees about a particular political candidate or party, for instance, turns to how that candidate or party might improve or degrade terms or conditions of employment, such a conversation may rise to the level of that protected by the NLRA.

Beyond that, expressing any type of political opinion to subordinate employees may leave supervisors and managers exposed to claims they are biased against employees on the basis of other protected statues, such as race, national origin, sex or religion.  As this current election cycle illustrates, political candidates have races, nationalities, religions and other protected characteristics; most, as we have already seen, whether at the national, state or local level, also voice strong opinions about race relations, foreign policy, religious freedom, Second Amendment rights, immigration, LGBT rights and issues and other political issues directly related to characteristics protected by federal, state or local workplace discrimination laws.

So, dropping into a political debate with a subordinate employee about a candidate, party, cause or political issue risks allowing the employee to associate your expressed opinions with some type of prohibited discriminatory bias.  Doing so during the heat of a presidential election cycle only increases that risk.

How can you limit exposure to such claims?  Foremost, ensure you know whether any federal, state or local law specifically protects your employees from political affiliation or activities discrimination.  If such a law applies to your organization, ensure you understand what it covers (only political activities, expressed political beliefs, or more broadly protecting political affiliation or ideology) and what it does not. Further, be sure to educate supervisors and managers. Training can be an important line of defense, by limiting potential exposure before it even has a chance to evolve.

Even where no such laws apply to your workplace, remind yourself and your supervisors and managers how easily a stated political opinion can be viewed as a form of prohibited workplace animus or bias (“She supports that candidate who opposes immigrants, so she must want to fire me so I can be deported.”).  Encourage supervisors and managers (and yourself) to resist the siren call of being drawn into workplace political discussions, specifically with subordinate employees.  Perhaps take the opportunity to ask HR to conduct additional supervisor/manager workplace training.  It’s a long time until the next election.  It always is.