Can Employers Stop Employees from Taking a Stand on the War in Ukraine or Require Them to Support the Employer’s Position?

Switzerland’s Inttingen Charterhouse recently canceled Russian cellist's Anastasia Kobekina’s March 20 concert. Kobekina posted on Instagram that her notification of cancellation said that "The reason is the Russian nationality of the artist, but not the young musician herself. Anastasia Kobekina vehemently condemns Russia’s war against Ukraine.”  Kobekina had posted on social media, possibly at risk to herself and her family, "I can’t and won’t accept that this war is going on my behalf as a Russian citizen. I am devastated. This tragedy should be stopped as soon as possible. Peace should be restored.”

Russian pianist Alexander Malofeev has similarly experienced cancellation of his Canadian concerts (although he was permitted to perform in Buffalo, New York). A youthful 20-year-old, Malofeev, with relatives in Ukraine, expressed concern that his family in Russia might suffer were he to make an overtly political statement:

I am contacted by journalists now who want me to make statements. I feel very uncomfortable about this and also think that it can affect my family in Russia. . . .

 It would seem that there are obvious conclusions: no problem can be solved by war, people cannot be judged by their nationality. But why, in a few days, has the whole world rolled back into a state where every person has a choice between fear and hatred?

 I do understand that my problems are very insignificant compared to those of people in Ukraine, including my relatives who live there. The most important thing now is to stop the blood. All I know is that the spread of hatred will not help in any way, but only cause more suffering.

 These musicians probably had contracts  outlining their rights and obligations. They weren't employees. Since the concerts weren't in the United States, U.S. law wouldn't apply.

But what if the musicians had been employees working in the United States? Would an employer be able to fire them simply because they are Russian? Or would U.S. employment discrimination laws protect them? This article discusses the legal issues associated with businesses that terminate Russian employees to make a political statement against the war in Ukraine.

Attitudes Toward “Russian” Businesses in the United States

Throughout the United States, businesses perceived to be Russian are being targeted, presumably by people opposing the war in Ukraine. Russian House restaurant in Washington, DC—whose owner is a United States citizen—received hate calls, was vandalized, and anti-Russian signs were left behind.

A Russian restaurant in California received bomb threats and negative online reviews, some claiming the restaurant supports Russia’s invasion—even though the owner is an Armenian who has lived in the United States for 24 years, supports Ukraine, and half of its employees are Ukrainian. A store in Columbus, Ohio, co-managed by two immigrants—one from Russian and the other from Ukraine—which sells Eastern European food, received threatening phone calls. The anti-Russian sentiment has gone so far that a restaurant named after the French-Canadian cheese curd and gravy dish, poutine, was vandalized because the name is similar to Putin.

Employees of Russian Heritage Working in the United States

It's clear that no matter what one’s stance on the war in Ukraine, this isn’t a great time to have a business that appears to support Russian culture. And it may not be a good time to be (or perceived to be) of Russian heritage--even though a Suffolk University/USA TODAY poll showed that Americans of both Russian and Ukrainian heritage overwhelmingly oppose Russia’s invasion of Ukraine.

Suppose an employer has an employee with a Russian-sounding name. The employee could be a United States citizen, even be born in the United States, and they might not even be of Russian heritage—but customers assume they are Russian because of their name. Although one would like to think that a name wouldn’t matter, given the poutine/Putin confusion, it seems some people will react to a name that sounds Russian.

What happens if the employer is concerned that having this employee could harm its business and moves the employee to a non-customer-facing job? Or even lays off the employee—because of their name? Does it matter whether the employer does this proactively or responds to customer complaints? What if the employer receives threats of violence if they retain the employee?

Federal equal employment laws prohibit discrimination based on national origin, including ethnic background. The EEOC’s position is that treating someone unfavorably because of their ethnic background or national origin is illegal, even if the individual doesn’t have that background. So, an employee who is reassigned or laid off because they are (or are believed to be) of Russian heritage would have a prima facie employment discrimination claim against their employer.

But once an employee states their prima facie case, the employer has an opportunity to articulate a legitimate, non-discriminatory reason for the adverse action. Are a customer’s complaints about an employee’s Russian heritage a legitimate reason if the customer's complaints reflect bias based on ethnic background or national origin? No—accommodating the customer’s bias doesn’t legitimate unlawful discrimination.

Political Viewpoints in the Workplace

Many people claim a “First Amendment Right” to express their opinions. But the First Amendment only applies to government action, not businesses or private employers. Employees who express their viewpoints on the war in Ukraine—or any other political issue —generally can be disciplined or fired for doing no matter how popular or “politically correct” that viewpoint may be.

Employees who express opinions on the war in Ukraine have learned this the hard way. Recently, a substitute teacher in Virginia was suspended after reportedly expressing support for Russian President Putin and suggesting students read Sputnik News. And a Wisconsin assistant city attorney who expressed support for Putin on Russia Today television found herself without a job. And both of these individuals worked for government employers, so the First Amendment may have applied to their speech.

However, a private employer has broad latitude to limit political speech in the workplace. Under the National Labor Relations Act, employers can’t restrict speech directed to other employees relating to employment conditions, collective bargaining efforts, or other labor or work issues. But employers usually can control discourse, including political speech in the workplace—as long as the discussion about the war in Ukraine isn’t work-related (e.g., concerned about the war might affect a customer in Ukraine).

If a private employer restricts workplace discussion about the war in Ukraine, employers shouldn't adopt content-based restrictions. For instance, allowing employees to express support for Ukraine but not Russia might be unlawful discrimination. Yet, even that isn’t clear-cut.

A similar issue arose when employees faced disciplinary action for promoting Black Lives Matter (BLM) in the workplace, frequently by wearing BLM buttons or patches. Generally, employers with broad, content-neutral policies (e.g., a strict, consistently enforced dress code prohibiting buttons or patches other than those issued by the employer) fared better.

Employers who targeted BLM but allowed other forms of expression were vulnerable to race discrimination claims. But one court said that if an employer disciplined all employees wearing BLM attire regardless of the employees’ races, a blanket prohibition specific to BLM might be permitted.

Yet, the legal issue is far from settled. For example, there is ongoing litigation involving Whole Foods' prohibition of BLM promotional items (and all other non-Whole Foods items) at work. The NLRB contends Title VII applies to a blanket prohibition, which covers BLM items, even though the ban isn't aimed at a specific protected class, but at least one court has ruled to the contrary.

Think about Alexander Malofeev, who felt pressure to comment (presumably negatively) on the  Russian invasion of Ukraine. His internal debate is evident--he doesn’t support the Russian war effort, but if he says that publicly, he risks harm to his family in Russia—quite a burden for a 20-year-old. Yet, by remaining silent, he jeopardized his international career.

What if a U.S. employer required employees to express support of Ukraine or support the Russian invasion? What if the employer only expects symbolic speech by requiring employees to wear a Ukrainian flag pin?

Some states prohibit employers from imposing the employer’s political viewpoints on the employees and retaliating against employees who don’t support the employer’s political case. But in other states, employees may have to support the employer's position or risk losing their jobs.

Federal law doesn’t protect employees from a consistently-applied employer political mandate—unless the requirement discriminates against or harasses employees in a protected class. For instance, it could be considered harassment of a Russian employee based upon national origin to put up posters depicting Russians as evil. And it likely would be unlawful discrimination to require only employees with Russian-sounding names to express support of Ukraine.

Takeaway

Employees should remember that they have no First Amendment freedoms in a private workplace. But on the other hand, employers may need to straddle a delicate balance between employee rights and customer demands.

Where a business receives threats for supporting a cause, employee safety or the business's continued existence might even be concerns. An employer may not discriminate against a protected class to satisfy customer preferences. It's unsettled whether steps to prevent possible serious harm to people could be a legitimate non-discriminatory reason for disparate treatment.

Consistently applied content-neutral employer policies that don’t disproportionately affect employees in a protected class are most likely to be upheld. But when a content-neutral employer  policy restricts employees’ ability to support a cause tied to race, national origin, or another protected class, the law is unclear.

© 2022 by Elizabeth A. Whitman

Any references to clients and their legal situations have been modified to protect client confidentiality.

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