Holly Goodman is a labor and employment attorney at law firm Gunster.
We are well into an election year with another hotly contested presidential race expected in November. There are wars occurring across the ocean that are prevalent in the national conversation. And as millions of consumers know, social media has become a breeding ground for political debate, memes and disputes.
It is inevitable that some political disagreements will cross-over into the workplace. When it does, it will leave many businesses wondering about the rules: Can an employer fire an employee for political speech? Can it prohibit political discussions in the workplace? How can a business avoid potential litigation over political activity?
Although many people rightly view political speech as protected by the First Amendment, it does not apply to most employer-employee relationships. The First Amendment restricts state action; it does not generally apply to private workplaces. Many people are also surprised to learn that federal anti-discrimination laws do not expressly protect political affiliation or political speech.
Does that mean an employer can fire an employee for political activity? Maybe, but maybe not.
In early February, actress and former MMA fighter Gina Carano made headlines when she filed a 59-page lawsuit against two of the most well-known names in Hollywood, Disney and Lucasfilm. Carano appeared in 7 episodes of the popular television show The Mandalorian between 2019 and 2020. According to Carano, she was also slated to appear as a series regular on a spinoff series. But Carano said that all ended when she became the subject of a media firestorm over personal social media posts. Carano alleged Disney and Lucasfilm terminated her employment from The Mandalorian and refused to hire her for future projects based on her political activity and her sex.
Although political affiliation is not a protected class under federal law, some states and localities expressly prohibit taking employment action based on political affiliation or political involvement. California, where Carano’s lawsuit is pending, prohibits an employer from controlling or directing its employees’ political activities or affiliations. New York prohibits employers from discriminating against employees based on their political activities outside of work hours and off the employer’s premises. The District of Columbia Human Rights Act prohibits discrimination based on political affiliation. A few other states, cities, and counties have similar restrictions.
Some states are less explicit in protecting political activity itself but have broad laws that prohibit termination of an employee based on their engagement in lawful conduct off-duty — conduct which may include political activities or speech.
So, whether an employer can terminate an employee for political activity may depend on multiple factors including the type of activity, when the activity occurred (on or off the clock), and the limitations of state and local laws where the employee performs work for the business.
However, even in states where political activity or political affiliation are protected, an employer can still address the impact of political controversies that occur in the workplace and take steps to protect itself from potential litigation over political speech. It is important for employers to take a proactive approach to addressing political disputes by crafting policies, training employees and supervisors, and uniformly and consistently enforcing company rules.
Political discussions at work can impact overall office morale, create a distraction and limit productivity. In a jurisdiction that includes political affiliation as a protected class, political disputes at work can also create allegations of a hostile work environment based on those different political opinions.
An employer may establish a policy that prohibits political discussion or displays in the workplace, provided that the policy has appropriate carve outs for activity that is protected by applicable law and is consistently applied to all workers. One of Carano’s claims is that Disney and Lucasfilm treated her engagement in political speech on social media differently than it treated her male co-stars’ engagement in political speech on social media, so consistency is key.
If an employer adopts a “no politics in the workplace” policy, it is also important to make it clear to employees that the policy does not prevent employees from discussing issues that affect the terms and conditions of their employment — activity which is protected by the National Labor Relations Act. Of course, any policy should be reviewed to ensure compliance with applicable state and local laws.
Even with a properly tailored policy prohibiting non-work-related political discussion in the workplace, it is unrealistic to expect employees to ignore current events and to stop talking about political topics altogether. To reduce the potential impact of political disputes on the workplace, employers should be prepared to proactively address disruptions that affect customer service or employee performance. Supervisors and managers should be trained on how to identify and manage potential conflicts before they escalate, and how to lawfully redirect employees in compliance with employer policies.
Most importantly, employers should strive to ensure a workplace culture that embraces respect and professionalism. Many of the topics that may arise in a political conversation may also touch an employee’s religion, national origin or other protected status. Employees should be reminded of the employer’s policies prohibiting discrimination, harassment and retaliation in the workplace, and should be encouraged to treat their colleagues with mutual respect, even in disagreements.
While political discussions in the workplace may be inevitable, employers aren’t without options. By understanding legal limitations and taking proactive measures in compliance with the laws, employers can maintain civility and minimize disruption to their workplace.