Volume 39, Issue 10, October 2004

LegalEase

Political Pressures
Keeping Politics Out of the Workplace
by David Barron

This election season promises to be one of the most divisive and controversial in recent memory. With the rise of talk radio and hit movies such as Fahrenheit 911, the lines between popular culture and politics have become even more blurred. The talk around the water cooler this fall will undoubtedly center on the election and the various ideas and issues involved. Although many employees view the workplace as a safe haven, away from annoying commercials and political solicitations, others will seek to take advantage of the forum as an opportunity to promote a particular candidate or ideology. Most political discussions are harmless, but the headlines are full of lawsuits from persons taking offense to what is said or done in the workplace. It is more important than ever for managers and executives to ensure that their company has a game plan for dealing with employees who cross over the line.

Restrictions on Political Expression
Recently, an Amtrak conductor was suspended for suggesting passengers should vote against Democratic presidential candidate John Kerry, after his train was delayed so that Kerry’s locomotive could leave ahead of it. This case serves as a reminder that, in the private sector, there is no constitutional right to speak one’s opinion. An employer can permissibly limit expression in the workplace that it deems offensive, inappropriate or disruptive to its business. Employees can lawfully be disciplined for violating these rules, so long as discipline is not meted out in a discriminatory manner.

There is no right answer as to where the line should be drawn on political speech. Each company is different. Some employers are active in political campaigns, and may go so far as to have voter registration drives or candidate speeches at work. The majority of employers, however, prefer to keep politics out of the workplace.

Employers have wide discretion in establishing limitations on employee expression. Limits on political activity in the workplace can be enforced across the board or be narrowly tailored to specific company needs. For example, as in the conductor case, employers can prohibit political statements made to customers or the general public while on company time. Employers can enforce dress codes or other limits on employees wearing buttons, pins or campaign paraphernalia when the employer deems that such expressions may negatively impact its business. Lastly, employers can restrict access to bulletin boards or e-mail systems for political purposes.

Avoiding Discrimination Claims
This election year is full of contentious issues that engender strong opinions. In many cases, such as gay marriage, the war on terror or the removal of Christian symbols from government monuments, employees may find themselves divided along racial, religious or ethnic lines. Workplace discussions on these issues can easily cross over the line from innocent conversation to perceived harassment. To make matters worse, employees not allowed to speak their minds on these issues may cry discrimination as well.

Although most employees prefer to avoid political debates at work, every workplace has someone who actively looks for a fight. In South Carolina, a mechanic refused to remove a Confederate flag sticker from his lunch box, and was fired. A Hewlett Packard employee sued after being terminated for refusing to take down Bible verses condemning homosexuality. The employers in these situations were caught in a catch-22 situation where they could be sued no matter what action they took. If they did nothing, they were exposed to a harassment lawsuit. If they took action against the employee, they would be sued for discrimination.

In these cases, and most others, the risk of allowing offensive workplace expression is far greater than limiting it. Moreover, if a complaint is made, the company has a legal duty to investigate the complaint and eliminate any conduct that constitutes unlawful harassment.

Practical Tips to Minimize Liability
Most employees understand that stirring up a political debate at work is not the best career move. The modern workplace is more diverse than ever, and most employees are accustomed to working with coworkers with different backgrounds and beliefs. Simply, it is unnecessary, in most cases, for management to police civility.
Inevitably, however, there will be those who do not exercise the requisite level of discretion. Left alone, a few pot stirrers can ignite the workplace and destroy morale and productivity. A simple controversy can mushroom, and lead to wasted management time and the wasted time of coworkers who become distracted from their jobs.
The following are some practical tips to help prevent your workplace from becoming a political battlefield.
• Ensure that your company’s policy on political expression is clearly communicated in an easy to understand fashion. The vast majority of employees will follow the rules, if they are only made aware of them;
• Train supervisors and managers 
on the company’s policy and 
what steps to take if they hear or observe inappropriate workplace conduct;
• Use progressive steps to enforce your company’s policy. Most issues can probably be handled by a simple reminder or verbal counseling. Avoid a heavy-handed reaction to innocent discussions amongst employees;
• Respond quickly to employee complaints of harassment; and
• Consult legal counsel when a difficult situation arises. Some states have special protections for political speech. Also, federal law protects certain categories of speech, such as speech related to unions or safety. Competent legal counsel can ensure that any disciplinary action is within the company’s legal rights.

Employees today spend more time at work than they do anywhere else in their lives. Talking with coworkers about their family, religion or political beliefs is fast becoming the norm, rather than the exception. Following the tips above will help your company avoid having these innocent workplace discussions evolve into a minefield of potential liability. 

the author
David Barron is an attorney at Epstein Becker Green Wickliff & Hall P.C. based in Houston.


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