By all indications, 2024 is shaping up to be another contentious election year. Each political party’s candidate elicits polarizing reactions from the other side. A number of hot-button issues like immigration, gun control, and reproductive rights, dominate the cable news shows and social media comment sections. With so much political strife, how can employers avoid politically-motivated conflict in the workplace?
As with many employment issues, the best approach is to plan ahead by developing sensible policies, and then carry out that plan by applying the policies consistently and uniformly to all employees.
Very often when issues relating to political speech in the workplace arise, the affected employee will assert their right to engage in “free speech” under the First Amendment to the U.S. Constitution. However, as a general principle, employees working in the private sector do not have a constitutional right to engage in political speech in the workplace. Different rules apply to employees working in the public sector.
As a result, private-sector employers have considerable latitude in regulating political speech in the workplace. Employers can adopt policies and guidelines for appropriate behavior and communication in the workplace, and they can implement dress codes prohibiting political hats, t-shirts and other items.
In recent years, Whole Foods has faced legal challenges from employees who were disciplined for wearing facemasks and other apparel emblazoned with “Black Lives Matter” logos. The company said that the clothing ran afoul of the company’s dress code which prohibits the wearing of clothing with visible messages. In court, the employees claimed that the action violated their rights under the Civil Rights Act of 1964. The National Labor Relations Board also considered whether the employer’s action violated the employees’ rights under the National Labor Relations Act. In both cases, Whole Foods prevailed, and its dress code was upheld.
However, when crafting and implementing policies aimed at avoiding political conflict in the workplace, employers need to be careful not to overstep legal boundaries.
While employers can enact polices that prohibit disruptive or harassing speech that creates a hostile environment, they cannot discriminate against employees because of their political beliefs or affiliations. Similarly, dress codes should be content neutral, and not single out any particular political views. It would be improper for an employer to discipline one employee for wearing a “MAGA” cap while looking the other way when another employee wears a Biden/Harris t-shirt. Likewise, it would not be acceptable for an employer to tell an employee to take down a Planned Parenthood sign from their cubicle while allowing another employee to display a National Rifle Association sticker on their office door. Policies need to be equally applied in order to avoid claims of discrimination or retaliation, and further stoking potential areas of conflict.
Beyond that, employers must also be mindful of their obligation not to interfere with employees’ rights under the National Labor Relations Act to engage in concerted activity. This statute protects the ability of employees to talk with one another about the terms and conditions of their employment and to band together to attempt to improve those conditions. Policies and practices aimed at maintaining harmony in the workplace when it comes to national politics cannot be seen as chilling employees’ ability to engaged in protected speech regarding their working conditions.
Despite an employer’s best efforts to develop smart and legally-appropriate policies, political flashpoints may still occur in the workplace. When that happens, employers should not ignore the issue or let it simmer. The best approach is to address conflicts promptly and impartially, and in a way that allows all employees involved to be treated fairly and respectfully. This may involve coaching, training about the company’s policies, and perhaps even mediation between the employees involved. Depending upon the circumstances, discipline or even termination may be warranted.
Ultimately, navigating the regulation of political speech in the workplace requires a nuanced understanding of both legal considerations and practical strategies for conflict resolution. By establishing clear policies, promoting respectful communication, and addressing conflicts promptly and effectively, employers can create an inclusive and harmonious work environment where employees feel valued and respected, regardless of their political beliefs.