Thin line between political and hate speech: What’s acceptable at work

by Holly K. Jones, J.D.

Picture it—it’s a Friday afternoon at the end of a very long week, and just as you are about to sneak out early for the weekend, one of your employees walks into your office wearing a camouflage trucker hat emblazoned with the words “Make America Great Again.” Oh perfect, you think to yourself, another Trump supporter. And before you can stop yourself, your (irrational and unproductive) irritation gets the best of you, and you find yourself remarking sarcastically, “Nice hat. Do you hate women, too?” The employee gives you a shocked look but leaves your office after getting an answer to an unrelated question, and as he walks away, you proudly tag Hillary Clinton in a tweet about how you stood up for women’s equality. 

A week later, you have to give the same employee a written warning for being late for the third time in the past two weeks, but when you ask him to sign the warning, he angrily accuses you of discriminating against him because he is a Republican and a Caucasian man. And he then files a complaint against you with HR.

Should you be concerned? Are you facing a legal risk you weren’t aware of? Should you call your employment attorney?

Free speech and other concerns

Political activity and affiliation are protected statuses only for certain employees and in certain places. For example, the First Amendment to the U.S. Constitution has been construed to prohibit public employers from using political affiliation as a factor when making employment decisions, and the Civil Service Reform Act of 1978 expressly protects federal employees from political affiliation discrimination. Additionally, in some states and municipalities—including California, Louisiana, New York, the District of Columbia, and the cities of Lansing, Michigan, Madison, Wisconsin, and Seattle, Washington—political affiliation is a protected class just like race, age, and disability, even for employees who work in the private sector.

Phew, you might be thinking. None of those laws applies to us, so I have nothing to worry about, right? Not necessarily. Just because you are a private employer doing business in a state, county, and town that don’t specifically protect employees from discrimination on the basis of political affiliation doesn’t mean you should feel free to speak your mind the next time one of your subordinates gets on her soapbox about Bernie Sanders.

For one thing, employees have the right to discuss workplace conditions under the National Labor Relations Act (NLRA), and a conversation about a particular political party or candidate probably meets that description if it touches on how that party or candidate might lead to better or worse terms or conditions of employment.

Furthermore, voicing any type of political opinion leaves you vulnerable to allegations that you are biased against the employee on the basis of some other protected characteristic, such as race, national origin, or religion. Think about it—all political candidates have races, nationalities, religions, and other protected characteristics, and most also have strong opinions about race relations, foreign policy, religious freedom, the Second Amendment, immigration, gay rights, and other political issues that are directly related to characteristics that are protected by employment discrimination laws.

Accordingly, getting into a political debate with an employee about a candidate or a political issue risks inviting the employee to associate your political views with some type of prohibited discriminatory bias, particularly in the midst of a presidential campaign.

If you don’t have anything nice to say . . .

So how can you best protect yourself and your company from unnecessary additional legal risk? Most important, make sure you know whether any federal, state, or local laws (like city and county ordinances) specifically protect your workforce from discrimination on the basis of their political affiliation or activities. As noted above, such laws exist in only a few states and the District of Columbia, but they can also be found in city and county ordinances like those that protect employees in Seattle, Lansing, and Madison. If such a law does apply to your company, make sure you understand what it covers—does it protect only political activities or overt expressions of political beliefs, or does it more broadly protect employees from discrimination on the basis of political affiliation or ideology—and be sure to educate your supervisory employees accordingly.

But even if you aren’t subject to such a law, take the time to remind yourself and your supervisors just how easily a political opinion can be taken as a form of unlawful animus or bias, and encourage them not to get drawn into political discussions at work, particularly not with subordinate employees. They might “Stand with Rand,” but is Rand going to stand with them when they have to defend themselves against allegations of discrimination or retaliation in court? Probably not.

Holly K. Jones, J.D., is a Legal Editor for BLR’s human resources and employment law publications. She understands the existing and emerging needs and challenges of human resources professionals thanks to several years of experience managing, writing, and editing key legal and compliance publications for BLR. Prior to joining BLR, Ms. Jones worked for the Tennessee Legislature’s Office of Legal Services.