Passage of any major landmark legislation divided on stark partisan lines, such as thePatient Protection and Affordable Care Act (PPACA) (Public Law 111-148), is bound to incite passion across the political spectrum. In addition to traditional Democrat and Republican ideology, we now have “tea party” and “coffee party” movements. There is thus no question that many people, including your employees, are probably going to be “talking politics”.

However, some have opined that current political discourse has devolved to overt expressions or undertones of racism, sexism, and/or xenophobia. See Frank Rich, The Rage Is Not About Health Care (New York Times, March 27, 2010) (“The real source of the over-the-top rage of 2010 is the same kind of national existential reordering that roiled America in 1964. . . . If Obama’s first legislative priority had been immigration or financial reform or climate change, we would have seen the same trajectory. The conjunction of a black president and a female speaker of the House — topped off by a wise Latina on the Supreme Court and a powerful gay Congressional committee chairman — would sow fears of disenfranchisement among a dwindling and threatened minority in the country no matter what policies were in play. . . .When you hear demonstrators chant the slogan ‘Take our country back!’ these are the people they want to take the country back from”).

America’s most-watched cable news personality also detects a climate of hatred, although his talking points say it is occurring equally on the left and the right: “There is far too much hatred in America. That’s obvious. It comes from both sides. . . . The point is that the situation in America is reaching critical mass. There is far too much hatred in the air. The press is obviously pumping up inappropriate things that happen on the right and pretty much ignoring hateful things on the left. . . . But every member of the media should condemn all hate speech and violent activity. It is simply un-American.”

Some Hidden Dangers of Tea & Coffee Talk

While contentious issues like healthcare expansion, immigration reform and amnesty, abortion, gay marriage, religious observances, and foreign policy are capable of objective debate, it is clear that we're in a political climate in which conversation can easily become tainted with perceptions of racial, sexist, religious, or national origin prejudice. As an employer, you should of course be aware that federal, state, and local nondiscrimination laws require work environments to be free of “hostility” based on protected classifications such as race, national origin, religion, gender, age, and disability. (Some states and municipalities also include sexual orientation as a protected category). Workplace conversation can violate Title VII of the Civil Rights Act of 1964 when it permeates the workplace with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of an individual’s employment and create an abusive or hostile work environment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

Merely expressing one’s point of view on these hot-button subjects could include comments that are misconstrued as discriminatory or elicit further conversation that may devolve into discussions or commentary not appropriate for the workplace. Thus, while a supervisor’s general discussion of her opposition to healthcare reform may be benign, it may be imprudent if she included commentary about protected classes or characteristics. For example, a conversation centered on the large numbers of uninsured individuals is innocent enough, but moving the general conversation to a specific group or individual may be troublesome. Thus a supervisor commenting that statistically, Hispanics have the highest uninsured rate of any racial or ethnic group within the United States, or that a woman's right to choose with respect to pregnancy should be (or should not be) part of a healthcare package of an employer may be perceived as “crossing the line” from general banter or comment to harassment. The better practice is to simply avoid any potential for misunderstanding and refrain from engaging in political discussion based on protected classes or characteristics.

In addition, a more complex issue arises when such political banter among employees implicates rights under section 7 of the National Labor Relations Act that may be applicable to the extent it is deemed protected concerted activity. The NLRB General Counsel's July 22, 2008 Memorandum provides some guidance on helping to determine when concerted activity is considered to be for purposes of collective bargaining or other "mutual aid or protection" under section 7 of the NLRA. It is important to note that such issues need to be taken into consideration even in workplaces that are non-unionized.

Best Practices

Accordingly, private employers should be extra-cognizant of, and appropriately investigate, any bona fide complaint of workplace political banter that explicitly or implicitly invokes protected characteristics. This does not mean that companies should be hyper-managing general civility, for employers must be able to trust that their employees are exercising good judgment, discretion and respecting a diverse workplace. Indeed, regardless of whether political discourse rises to the level of creating a hostile work environment, employers are entitled to expect good judgment and discretion to foster teamwork, positive morale, and productivity.

To this end, while there is no “one size fits all” strategy, your company should consider adopting a clear, user-friendly policy on political expression which includes channels for complaints, investigation, and disciplinary action. NB: A private employer is not bound by the First Amendment and is generally free to restrict speech at its discretion. However, because of the myriad laws varying by jurisdiction (such as state laws protecting certain political speech or activity, lawful off duty conduct laws such as New York Labor Law 201-d, as well as federal laws concerning union activity and/or otherwise protected concerted activity) legal counsel should be consulted before implementing a policy concerning political expression by employees.