January 26, 2017

There is no doubt that we are living in politically charged times.  Seemingly everyone has a strong opinion on the outcome of the recent Presidential election, the duty of professional athletes to stand during the National Anthem or a myriad of other issues involving race, sex or religion.  Consequently, workplace discussions are becoming heated and employers may be faced with the dilemma of policing conversations before they get out of control.  In a nation that prides itself on the First Amendment right to free speech, what can employers do to manage the risk of private beliefs colliding with office harmony?

Quite a bit, actually.  As far back as 1892, the famed jurist, Oliver Wendell Holmes, Jr., penned this now-famous phrase: “An employee may have a constitutional right to talk politics, but he has no constitutional right to be employed.”  In other words, private (i.e., non-governmental) employers can, within limits,  restrict the topics of conversation in the workplace.  Indeed, employers may have a duty to police employee speech.  Imagine, for example, a scenario where a manager expresses his support for a politician deemed to be sympathetic with the KKK.  If, after expressing such political beliefs openly at work, that manager later fires an African-American employee, his actions could be argued to be racially motivated and in violation of anti-discrimination laws.  

In fact, workplace political banter is a favored topic of Plaintiffs’ employment lawyers.  In pursuing a harassment case, they will dig into political speech in the workplace, political signs or stickers hung in the workplace and employee knowledge of the political affiliations of the managers/employees deemed to be harassers.  Of course, they will also dig into your Code of Conduct to see if your organization has appropriately addressed conversations that could create a hostile environment.

Importantly, the language in your Code of Conduct that restricts political speech must itself be content-neutral.  Take these two examples:

  1. During the work day or at organization events, employees must not discuss politics excessively, in a manner that is disruptive or in a way that a reasonable person would find offensive.
  2. Employees may not discuss abortion rights in the workplace.

The first provision is a good example of a content-neutral and nuanced restriction. It permits casual, non-confrontational discussions of politics without a blanket ban.  The second provision is more troubling.  Even though it does not refer specifically to any one gender or sex, it could be construed to improperly restrict speech on an issue pertaining to women.  Provisions that can arguably apply to one group more than another should be avoided at all costs.

Once content-neutral written provisions are in place, managers should then enforce such provisions when they observe a violation and not wait until a complaint is lodged.  Inconsistent enforcement of these provisions can be just as dangerous as having no restrictions on speech at all.  For instance, let’s say an employer’s Code of Conduct included a perfectly-worded, content-neutral restriction on political speech at work, but, managers only enforced that provision when employees were caught sympathizing with gay-rights issues.  You better believe Plaintiffs’ attorneys would be just as pleased to take that employer to court, notwithstanding the wonderfully written Code of Conduct.

In sum, employers are wise to enact thoughtful restrictions on workplace political speech.  There should be a thoughtful balance between employers exercising their legal right to restrict political speech while respecting the spirit of the First Amendment. Just remember these simple guidelines:

  1. Work with a knowledgeable attorney to ensure your policy meets legal requirements and sets the right tone from your organization.
  2. Include a content-neutral provision that addresses your organization’s policy on l political speech at work in your Code of Conduct.
  3. Ensure that managers enforce that provision equally and without regard to the political viewpoint being expressed.

If you know the law, understand the workplace environment you are striving to foster, and combine that with legal advice from knowledgeable counsel, you’ll be on the way to taming that water cooler chaos.