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Legal Clinic

Debating Politics at Work

When employees become unwillingly caught in the crossfire of a political debate, it's time for HR leaders to establish policies and practices that ensure that such discussions do not lead to lawsuits alleging discrimination.

Monday, March 26, 2012
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QUESTION: I am an HR director at a mid-sized company. With the elections around the corner, politics have become a hot topic at work. Problem is, our owner is very vocal about his political views. Most of the employees, however, are either not openly political or are very vocal about their commitment to the other party. I have been overhearing some heated and, at times, offensive debates between the owner and some of the employees, and can see that it makes some people very uncomfortable. Is there liability here? If so, what can I do to help correct the situation and protect the company?

ANSWER: An owner or other management-level employee strongly expressing political views in the workplace can very well have serious consequences for the company. Such conduct can, at the very least, create an uncomfortable atmosphere for employees and, at worst, create the potential for legal liability.

The First Amendment's protections for political expression do not prohibit private employers from limiting their employees' conduct during working hours. Moreover, federal anti-discrimination laws do not include political affiliation as a protected characteristic.

However, some state and local laws provide protection for political activity. A limited number of states provide specific protection for private employees' political activities, including California, where employers are prohibited from (1) making, adopting or enforcing any rule or policy forbidding or preventing employees from participating in politics; (2) controlling or directing the political activities or affiliations of employees; and (3) coercing or influencing the political activities of employees. Cal. Lab. Code ยงยง 1101, 1102.

Connecticut and South Carolina provide broad free-speech provisions that apply to private entities; however, these provisions have been interpreted narrowly so as to not render an employer liable where the employees' activities interfere with legitimate business concerns.

Still other states, including California, Colorado, New York and North Dakota, provide broad protection for an employee's lawful off-duty conduct, which may include political activity.

In addition, even though federal anti-discrimination laws do not specifically protect against discrimination based on political affiliation, political expression in the workplace could potentially create liability for discrimination on the basis of race, gender, age, religion or national origin, particularly when political statements by supervisors create the impression of favoritism or displeasure for the candidate based on one of these characteristics.

For instance, comments such as "I would never vote for a woman," especially when made by a supervisor, could be used as evidence in support of a sexual-harassment claim. Further, employees who feel they were penalized for expressing political opinions may use that as a basis for a discrimination claim.

In addition to potential legal liability, employers should also be aware of the non-legal ramifications of excessive political discussion in the workplace, particularly when conducted by an owner or management-level employee.

A 2008 study by the American Management Association found that 40 percent of employees are uncomfortable discussing politics with their supervisors. An owner or other supervisor who appears to be pushing his political agenda on employees may lower morale by ostracizing employees who have contrary viewpoints.

Employees may come to believe that their political affiliation will affect their evaluations, assignments or other aspects of the employment relationship. This could lead to retention problems if employees feel they are not valued or accepted in the workplace.

Of course, a company's foremost concern is accomplishing the work that needs to be done, and a workplace dominated by political debates and activity may be unproductive.

Solutions

The first step in resolving your problem with the politically active owner is to have a frank discussion about the way such actions could create potential problems for the company, legal and otherwise. The owner and other supervisors should be made aware that, even if it is not their intent, their statements could be perceived as creating a hostile-work environment for employees, based on a variety of protected characteristics depending on the nature of the political discussions.

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Second, the company may wish to consider adopting a policy limiting political discussion in the workplace during working hours. The goal here is not to stifle all political discussion, which could also hurt morale, but to delineate appropriate times, places and tones for such discussions.

Such a policy should emphasize the importance of creating a harassment-free workplace and the need to keep political discussions free of hostile and discriminatory comments.

The company may wish to include, as part of the policy, provisions prohibiting solicitations for political causes and distribution of non-work-related materials during working hours. It may also limit the use of company computers and other resources to work-related matters only.

The key is to enforce these policies uniformly. If a policy is implemented but enforced only against members of one political affiliation -- or equally bad, one protected class of individuals -- this could create the possibility for liability.

Additionally, under the circumstances described in your question -- the visibility of discomfort by employees who overhear these heated political conversations at work -- it may be beneficial to consider incorporating sensitivity training in political discussions into existing diversity-training programs.

Management should also be provided training on recognizing the signs of escalating debates that could quickly lead to inappropriate arguments.

Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group.

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