– By Rita Risser Chai and Ann Kiernan, Attorneys at Law
Recent events in the news may have managers wondering what their responsibilities are when political issues enter the workplace. This could happen in many ways: stickers on employee cars in the parking lot, or on employee lockers, tool boxes or cubicle walls; tattoos; T-shirts with slogans, flags or images; computer screensavers; postings on social media; employees in the news media for their political actions; internal memos; and so on. If you see something that seems offensive, or you receive a complaint, what do you do?
First, call HR, who should get the legal department and top executives involved. This could be a minefield.
Second, understand the legal parameters. There are at least four considerations: harassment and discrimination law, freedom of speech, right to privacy laws, and labor laws.
Federal and state laws prohibit harassment and discrimination on the basis of race, color, age, gender, sexual orientation, gender identity, religion, disability, national origin, and more. Any items containing racist, sexist, xenophobic, and other offensive images should be prohibited. If someone has a swastika tattoo, for example, the company can require it to be covered at all times. If the employee refuses, the company can terminate his/her employment. Cars in the company parking lot should be required to comply with anti-harassment policy and law as well. Discriminatory decals and bumper stickers can be prohibited. But if employees park on the street, even if their stickers are visible on company property, in general there is nothing the company can do (but see the section on right to privacy).
Suppose that the young men who were pictured leading the Charlottesville white supremacy rally have jobs. If their managers see those photos, the managers have a duty to ensure that those marchers do not act on their discriminatory beliefs in the workplace. This may be very difficult. Imagine them in customer-facing jobs, with many transactions a day. Are they treating all African-Americans, Hispanics, Asians, LGBTQs, people with disabilities, women, Muslims, Jews, and other minorities fairly and equally? What about any hiring or promotion decisions these employees may make? As difficult as it may be, managers need to pay attention to what they’re doing day to day.
Freedom of speech stops at the company property line (except for government employees). Although some commentators have argued that harassment laws violate freedom of speech, to date the courts have not adopted that view. Some people may argue that in our examples we are “picking on” white supremacists. What about other groups, like Black Lives Matter? The difference is that white supremacists say they are not equal to everyone else—they claim to be superior. Black Lives Matter is saying that African-American lives are as important as everyone else’s. The defining issue is whether the image or slogan is putting down someone else based on race, religion, or other protected characteristic. Although the “antifa” (anti-Fascist) movement is putting down a group, they are doing so not based on race, color, or religion, but based on political views, namely neo-Fascist anti-democratic, anti-immigrant, anti-Semitic statements.
While government workers do have First Amendment rights at work, there are limits. Under the Pickering test established by the U.S. Supreme Court in 1968, a public employee’s speech about a matter of public concern is protected under the First Amendment if the employee’s free speech interests outweigh the interest of the government as an employer in the efficient provision of services by its employees to the public. If political statements in the workplace cause disruption, the employer can prohibit them.
In a decision handed down in August, 2017, a federal appeals court upheld the firing of a Beach Patrol law enforcement officer who had made racist comments in on-duty texts and off-duty Facebook postings. The comments concerned the trial of George Zimmerman in the shooting death of Trayvon Martin, an unarmed African-American teenager. One of the milder comments he made after the verdict was announced was: “Another thug gone! Pull up your pants and act respectful. Bye bye thug rip!” The employee argued that he had been fired in violation of his First Amendment right to free speech, but the appellate court disagreed, finding that: “if the County had not terminated Snipes it was reasonably possible that there would have been substantial protests and rallies in the community, that the Beach Patrol’s ability to recruit new members from the African-American community would have been hindered, and that the public’s confidence in the Beach Patrol—and perhaps all County law enforcement—would have been adversely affected.” Snipes v. Volusia Cty., No. 16-14221, 2017 U.S. App. LEXIS 15872 (11th Cir. Aug. 21, 2017)
Right to privacy laws—which vary state by state—are somewhat counter-intuitive. They do protect employees from having their privacy invaded, such as being asked intrusive questions about their political beliefs. In some states, these laws also protect what employees do in their “private” lives (as long as it’s legal), even if what they do is very public, such as march in a rally, get interviewed on the news, or post on social media. In states such as California, New York, and Colorado, employees cannot be disciplined, harassed or discriminated against for legal behavior outside work. In fact, at least three states—California, Louisiana, and Colorado—prohibit employers from adopting any policy that forbids employees from participating in politics or running for office. Courts have interpreted “politics” to include promoting the acceptance of a cause and associating with others for the advancement of beliefs and ideas. But under most states’ privacy laws, you are free to fire someone who spouts racist, sexist, homophobic or other biased views.
Then there is labor law. Section 7 of the National Labor Relations Act, which applies to both unionized and non-unionized companies, says that “[e]mployees shall have the right . . . to engage in . . . concerted activities for the purpose of . . . mutual aid or protection.” The Google engineer who argued that women are underrepresented in tech not because they face bias and discrimination in the workplace, but because of inherent psychological differences between men and women and then was fired after he circulated his anti-diversity memo, has now filed an unfair labor practice charge with the National Labor Relations Board, telling the New York Times: “I have a legal right to express my concerns about the terms and conditions of my working environment, … which is what my document does.”
Finally, consider company values. Every employer Fair Measures works with has a company values statement which includes respecting employees. This allows the company to set a higher standard than the law, to prohibit behavior that is not illegal but which it considers disrespectful. That’s why the Google engineer was terminated, according to Google’s CEO: “To suggest a group of our colleagues have traits that make them less biologically suited to that work is offensive and not OK. It is contrary to our basic values and our Code of Conduct[.]”
What you should do: Remember the Four Key Concepts of our Managing within the Law programs: Be consistent. Have a legitimate business reason for decisions. Document. And most important, Call the Experts!
Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.