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Talking politics in the workplace may have more hazards than bruised feelings

September 21, 2016

By Michael Burns, courtesy of SBAM Approved Partner ASE

There is no doubt that this year’s presidential election has been controversial. Especially with next week’s presidential debate coming up, there is little doubt that discussions on politics (more than sports and company gossip) will continue to permeate the workplace this election. The media reports that this election’s rhetoric is more divisive than in decades. How is political discourse and debate impacting your workplace this election? And what are the potential implications if employees’ beliefs are challenged and at the very least, their feelings get hurt?  A recent article in Claims Management Magazine breaks down what problems may arise if political talk in the workplace gets out of hand.

Hostile Workplace Claims
The Claims Management Magazine article, “Politics in the Workplace,” cites that the federal Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Genetic Information Non-discrimination Act and the National Labor Relations Act all protect employees from a hostile environment within the protected classes of those laws. In the private workplace all political speech is not, that’s right, is NOT protected. 

In “Politics in the Workplace” the authors point to a scenario where one employee tells a coworker about Donald Trump’s position on restricting access for Muslims coming to the United States. If the perceived tenor of the employee’s talk is hostile toward Muslims some parties may take offense and bring a complaint. In the private workplace this type of speech in not protected as it may be in a public place, and a discrimination complaint may arise.

What can an employer do? Recognize that speech is not wholly protected in the workplace. Second, it is recommended by the authors to engage with employees on this issue early. Remind employees that what they say may be considered disrespectful and could lead to a hostile workplace complaint against the person stating it as well as the employer. Thirdly, remember that employees are on private property and most free speech protections do not apply. But there are protections for some speech. For example what if the above discussion also gets into workplace condition issues? This then becomes protected speech under the National Labor Relations Act if the employee’s controversial statements were shown to be about how Trump’s position may protect workers more.

Retaliation Claims 
What happens if an employee is offended by a comment made by a supervisor regarding the gender of one of the candidates?  A complaint made by an employee about a supervisor’s alleged gender bias would be protected activity. Therefore, any subsequent adverse employment action against the complaining employee could be seen as retaliation. 

The authors also warn employers about policing social media sites. They point out that the nature of social media and the use of Twitter and Facebook can “intertwine personal political opinions” with the employee’s workplace relationships. How an employer responds or not can lead to potential adverse employment claims—not to mention a possible public relations fall out should the media pick up on an employment controversy over worker political speech or support. The article recommends being cognizant of applicable state law that extends protections for employee political activities outside the workplace. This is more prevalent in the public sector workplace. The article points out that “New York has a labor law explicitly prohibiting a public employer from discriminating or retaliating against an employee because of an individual’s political activities outside of working hours, off of the employer’s premises, and without use of the employer’s equipment or other property if such activities are legal.”

In Michigan public employees have workplace protection of Executive Director No. 2007-24 that states:

A department, board, commission, or other agency subject to supervision by the Governor under Section 8 of Article V of the Michigan Constitution of 1963 shall not do any of the following:

  1. fail or refuse to hire, recruit, or promote; demote; discharge; or otherwise discriminate against a person with respect to employment in the classified service, compensation, or a term, condition, or privilege of employment in the classified service, because of religion, race, color, national origin, age, sex, sexual orientation, gender identity or expression, height, weight, marital status, partisan considerations [italics added], or a disability or genetic information that is unrelated to the person’s ability to perform the duties of a particular job or position.
  2. limit, segregate, or classify an employee or applicant for employment in the classified service in a way that deprives or tends to deprive the employee or applicant of an employment opportunity or otherwise adversely affects the status of an employee or applicant because of religion, race, color, national origin, age, sex, sexual orientation, gender identity or expression, height, weight, marital status, partisan considerations [italics added], or a disability or genetic information that is unrelated to the person’s ability to perform the duties of a particular job or position.

Employers are always under the microscope for adverse employment activities and controversial policies. If political discussions are becoming a concern at your place of employment, remind the employees to keep it civil and perhaps agree to disagree. 

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