Although not entirely unprecedented, many recent events have forced issues surrounding race and politics into the forefront and into the workplace. The social temperature is high, and for a lot of employers and employees, there’s an ongoing debate over whether, and in what capacity, these issues belong in the work setting, wrote Todd Stanton and Amanda Farahany of Barrett & Farahany in a September 9, 2020, Fulton County Daily Report article.
Determining when political statements qualify as protected speech, distinguishing between those that are racially charged or possibly discriminatory, and minimizing conflict while keeping everyone focused on work are just a few of the many challenges facing employers in today’s climate. Ultimately, the co-authors agree, employer neutrality and equal treatment are the best approaches
No Protection for Political Affiliation
The co-authors noted that because an individual’s free speech rights are only at issue with respect to government action, an employee’s political association is not a protected class, like race, religion, sex, or other characteristics covered by anti-discrimination laws. A private employer is generally permitted to set the boundaries of discourse in the workplace, even to the extent of regulating political speech. But Stanton and Farahany warn that employers do have an obligation to act when political rhetoric in the workplace becomes a proxy for discriminatory comments or conduct.
Focus on the Company’s Mission
Employers, therefore, may be wise to avoid hot-button issues altogether, stated the co-authors. Considering the company’s mission, keeping employees focused on the workplace as a place for business, creating quality products or services, and providing solid customer service while emphasizing common company goals are all relevant to workplace relationships. Employers can remind employees that while everyone is entitled to an opinion, in the workplace, the focus should be on the job at hand. In essence, Farahany and Stanton advise employers to set the standard before it becomes a problem and to address any behavior, regardless of viewpoint, that distracts from that mission when the situation arises.
Within the “mission first” mindset, employers should focus on work-related issues when dealing with an employee’s problematic actions. Often, those who aggressively push their strong political opinions into the workplace will have other issues that affect their performance, and those less confrontational areas may be a better place to manage the situation. Problems arise when employers rely too heavily on subjective decisions about what types of speech are allowed, so they are best served (from an employment law perspective) by keeping all eyes on the mission.
Consider Revising the Company’s Dress Code
Farahany and Stanton agree that while they may feel old-fashioned, dress codes that emphasize neutrality can address issues like the MAGA hat or BLM T-shirt. Just like many employers have a “no jeans” policy, companies can create a “no logos” policy, or ban clothing with any writing. A neutral dress code, even if perceived as somewhat antiquated, mitigates the potential disruption of an employee trying to make a political statement with clothing.
The attorneys remind employers to follow any policy updates with progressive disciplinary measures, meaning an employee who shows up in clothing that violates the policy may, for example, have to change, get a disciplinary note on their file, or face a one-day suspension. Disciplinary actions must steer clear of the underlying politics and must be applied evenly for all violations.
Apply the Rules Equally or Not at All
The attorneys emphasized that employees need to be treated equally, as such treatment relates to their protected characteristics. Treating employees differently based upon their race, religion, sex, etc., is unlawful. It is perfectly legal to set the boundaries of discourse in the workplace or to implement a “no logo” dress code; it is not all right for an employer to ban only BLM logos and treat Black workers differently.
Moreover, employers should take precautions to ensure that their neutral policies don’t disproportionately impact a protected group. For instance, just because politics is not a protected class, firing all Democrats or Republicans could still be an issue if most of the employees affected are over 40, or Asian, or Christian, or any other shared protected characteristic.
You can read the entire article on the Fulton County Daily Report website (subscription required).