by Luke Draisey
It’s likely that 2016 was a year that most people won’t soon forget. It was a year marked by international turmoil, celebrity deaths, and unprecedented political disunity. We saw Great Britain’s decision to withdraw from the European Union, the genesis of the Zika virus, and the deaths of several cultural icons, including David Bowie, John Glenn, and Prince. And who can forget the 2016 presidential election? 
While many Americans have celebrated the election of Donald J. Trump as the 45th president of the United States, for others his election is most notable for the controversy it has engendered. It should come as no surprise that the vitriol that characterized the 2016 election may crop up in the workplace, leaving employers at risk of accusations that they are fostering a hostile work environment or engaging in discrimination or retaliation.
Case in point
Take Matt Blanchfield, the CEO of 1st In SEO, an Internet marketing firm in Albuquerque, New Mexico. In November, Blanchfield wrote a blog post on his company’s website soon after the election calling then-President-elect Trump a “racist, sexist, [and a] fascist.” His opinion is undoubtedly shared by many Americans, but Blanchfield went a step further, writing:
1st In SEO will no longer do business with any person that is a registered Republican or supports Donald Trump. . . . If you are a Republican, voted for Donald Trump or support Donald Trump, in any manner, you are not welcome at 1st In SEO and we ask you to leave our firm. 1st In SEO will do everything in our power to ensure that we break ties with any person or business that supports Fascism.
Blanchfield’s strong statement is an extreme example of the anger and fear that the Trump presidency has generated in many Americans. But while comments like Blanchfield’s may be cathartic for the person expressing them, they may also expose employers to liability.
Discrimination based on political affiliation
Federal, state, and local laws exist to protect employees and customers from discrimination based on their race, gender, disability, religion, national origin, or military service, and, in some jurisdictions like Iowa, their sexual orientation and gender identity. Most states don’t expressly include political affiliation or beliefs alongside the other protected classes or characteristics.
While it may be inadvisable to turn away business based on customers’ political affiliation, it seems that businesses in most states are free to do so. But what about employees? Can you fire or discipline an employee for attending a rally, donating to a campaign, or posting something particularly controversial and political on social media?
In most states, employers cannot fire employees for engaging in activities that are clearly defined and well recognized as protected unless they have an overriding business justification. Political speech or participation in political activities, such as attending a candidate’s event, donating to a political campaign, or even running for office, are likely to be protected activities.
That doesn’t mean you cannot require a reasonable level of workplace decorum when employees engage in actions that border on the political. For example, your conduct policies should make clear that racist or sexist e-mails about a political candidate will never be tolerated. Indeed, this type of misconduct could give rise to liability if you don’t respond to it appropriately.
Set some guidelines
It can be difficult to distinguish between innocent political discussion and harassment. Your employees can help by talking to management about the types of conversations that make them uncomfortable and the types of comments they feel are unprofessional when it comes to discussing politics. To encourage an open line of communication between employees and supervisors, your policies should assure employees that all reports of harassment and bullying are confidential, and they will not be subjected to retaliation for coming forward with accusations of harassment.
Once you receive a report of harassment, you should act immediately to ensure that your employees are aware of why conversations about politics can make their coworkers feel uncomfortable or even under attack for their beliefs. If that means a one-on-one conversation with the offender, then that’s a conversation you should have.
Some inappropriate or unprofessional conduct in the workplace may fall outside your written policies. Many types of offensive and disruptive behavior aren’t overtly racist or sexist. To ensure that your employees work together peacefully and efficiently, leadership must be made aware of any harassment or bullying and put a stop to it before it leads to liability for a hostile work environment—even when the behavior at issue seems to be an innocent conversation about politics.
Bottom line
It’s important that your leadership team provide a clear example of professionalism for all employees to follow. Supervisors set the tone for the workplace, and the culture of your business will be reflected in how they conduct themselves. Don’t follow Matt Blanchfield’s example. It’s vitally important to your business that you and your employees rise above the incivility that marked 2016.
Luke Draisey is an attorney with Davis Brown Law Firm, practicing in the firm’s Des Moines, Iowa, office. He may be contacted at lukedraisey@davisbrownlaw.com.