Not only are we in the midst of an election year in which the tone of debate is often harsh and personal, but culture warriors are ubiquitous in the media, thrashing about over immigration, race, same-sex marriage, transgender restroom use, sexual assault, religious fanaticism – the list continues to grow. How much do employers have to worry about when these debates are carried into the workplace?
There is no right to free speech in private sector workplaces. An employer could ban all discussion of political issues at work if it wished. Such a ban would be difficult to enforce consistently, however, and likely would be detrimental to employee morale.
In a state such as California, which prohibits employers from coercing or retaliating against employees with regard to their political views, managers must use care in talking politics in the presence of subordinates. This is because it is too easy for a subordinate to assert a contrary view and then later claim, after being fired for poor job performance, that she was really fired because her politics differed from her manager’s. Similarly, e-mails or other written communications from a company CEO to employees urging them to support a particular candidate or ballot initiative should be avoided.
Otherwise, political debate in the workplace need not be forbidden so long as it does not violate other company policies. While an employee might complain of being offended by a co-worker’s comments about a political or social issue, a mere statement of support for a candidate or issue -- no matter how controversial – is not likely to qualify as a violation of the anti-harassment laws. Contrary to what some pundits and protesters might assert, merely stating one’s support for a candidate who favors tougher enforcement of immigration laws is not a racist statement. Nor is it a violation of workplace harassment laws to express concern about the prospect of boys using the girls’ restroom at school, or to speak out in favor of same-sex marriage.
The codes of political correctness in effect on college campuses do not apply in the workplace. Employers need not be concerned about microaggressions (inadvertent comments that members of a particular race or religion might interpret as offensive), or about providing “trigger warnings” (about language that some might find troubling) or “safe spaces” (where especially sensitive persons might find refuge) at work.
Simply put, the laws prohibiting workplace harassment do not outlaw every slight or comment that one may interpret as offensive. In the U.S. Supreme Court’s first case defining workplace harassment, the Court noted that “[m]ere utterance of an epithet which engenders offensive feelings in an employee” is not illegal. Rather, conduct must be severe or pervasive before it will be unlawful. Likewise, in an early case defining the scope of unlawful harassment, the U.S. Court of Appeals for the 9th Circuit (which covers California) stated: “In order to shield employers from having to accommodate the idiosyncratic concerns of the rare hyper-sensitive employee,” only conduct that a reasonable person would find offensive is unlawful.
Conversations or debates in the workplace about political candidates or current social issues are not unlawful, therefore, even though some employees might strongly disagree with the viewpoint expressed. Conduct beyond simple debate, however, is out of bounds such as racial or ethnic slurs, mocking religious beliefs or practices, or attacking a co-worker’s moral or lifestyle choices. Likewise, if a debate moves from words to fists, discipline is warranted.
Employers should review their anti-harassment policies, as some such policies are overbroad. A policy should not prohibit “all forms of harassment,” as such language is likely to encourage complaints about petty matters. Rather, the policy should forbid all unlawful harassment.
Workplaces need not be politics-free zones. Being exposed to viewpoints with which you disagree is not a valid basis for a lawsuit, not even in California. Employers should keep a sense of perspective in determining how much political debate to allow at work.
James J. McDonald, Jr. is managing partner of the Irvine, California office of the labor and employment firm Fisher Phillips. He is the author of California Employment Law: An Employer's Guide, published this year by the Society for Human Resource Management. He may be reached at firstname.lastname@example.org.