Recent events have underscored the difficulties employers face in managing diverse workforces in which employees hold a wide-range of political perspectives. The mere discussion of the news of the day can create divisive conflicts, especially since some employees might feel emboldened to express views once thought to be offensive or taboo, while others, in turn, believe they are compelled to speak up in opposition. For example, in the name of “open and honest discussion,” a former Google engineer made national news by publishing an internal company-wide memorandum critiquing the Google’s diversity initiatives and speculating (based on widely-discredited science) whether biological differences between men and women might account for the gender gap at tech companies. Google terminated him as a result, and he subsequently filed a charge with the NLRB. Meanwhile, following President Trump’s controversial comments on the subject, many NFL players have followed the example of Colin Kaepernick by kneeling during the national anthem to protest racial injustice. Kaepernick, who has remained unsigned by any NFL team during the 2017 season, filed an NLRB charge accusing NFL owners of collusion. Any seasoned employment lawyer or HR professional can imagine the ways in which situations like these could escalate even further in his or her own workplace. What if, following the events in Charlottesville, an employee decides to participate in (or make known his or her membership in) a hate group?
As nearly all employers know, federal, state and local anti-discrimination laws require them to employ their workforce without regard to gender, race, national origin, age, disability, or any other classification protected by law. To this end, most employers maintain and enforce written policies and procedures which prohibit any form of unlawful discrimination, harassment, or retaliation in the workplace. These laws and policies can be triggered when an employee expresses offensive views at work, especially if he or she makes derogatory comments implicating the protected characteristics of other employees. Accordingly, while management may indeed hope to foster a work environment in which difficult issues can be discussed candidly, employers will often be legally justified in taking disciplinary action against employees who cross the line by openly expressing offensive and stereotype-driven viewpoints in the workplace.
What can be more difficult is when an employer becomes aware of or proactively seeks to discourage an employee’s off-duty activities espousing such views. Employers should be mindful that, particularly where employees’ off-duty “political” conduct is at issue, doing so could potentially run afoul of state law. Indeed, a number of states have adopted laws prohibiting discrimination against employees based on their off-duty political views and/or activities, but the protections vary widely from state to state. New York’s Legal Activities Law, for example, outlaws discrimination based on, among other things, an employee’s political activities. Under that statute, political activities are defined to include “(i) running for public office, (ii) campaigning for a candidate for public office, or (iii) participating in fund-raising activities for the benefit of a candidate, political party or political advocacy group.” California law more broadly prevents employers from “coercing, influencing or attempting to coerce or influence employees’ political action or political activity” or adopting any rule that “tends to direct the political activities or affiliations of employees.” And, in Florida, it is a third-degree felony for an employer “to discharge or threaten to discharge any employee in his or her service for voting or not voting in any election, state, county, or municipal, for any candidate or measure submitted to a vote of the people.” It is therefore entirely possible that an employee’s active membership in a political organization that endorses hateful or retrograde views could be legally protected.