2024 Brought Heightened Awareness of Political Speech in the Workplace
Boris Godunov is an opera based on the historical events surrounding the rise and fall of the Russian Tsar of the same name. Written by Russian composer Modest Mussorgsky, the opera is set in the early 17th century, a time of great turmoil in Russia. Exploring themes of legitimacy, power, and the burden of leadership, the opera portrays Boris's ascent to the throne, his troubled reign, and the eventual unraveling of his power.
The opera’s intense psychological and political drama make it a powerful and complex work but also have created contention. Milan's La Scala opera house's decision to open its 2022-2023 season with the Russian opera Boris Godunov during the war in Ukraine drew sharp criticism, particularly from Ukrainian activists.
Critics asserted that staging a Russian cultural work at a time when Russia was waging war against Ukraine could be perceived as endorsement of Russian actions. La Scala asserted that art should be separated from politics and noted that the opera had been selected long before the war began. The opera house argued that cultural exchange is important, perhaps even especially so, in times of conflict and that boycotting all Russian culture in response to the actions of the Russian government was unfair and not called for.
Like artistic choices, as we have seen this year, political speech in the private workplace can be a contentious issue. Individuals feel strongly about current political issues such as abortion, the Israel-Hamas War, and the presidential election. While the election is over, the sharp political divide reflected in the candidates’ campaigns is not.
Employers will continue to difficult decisions about setting the tone and culture of their workplaces (which may involve taking a stand on political issues) and how to minimize business disruptions due to employee disputes. This article discusses how employers can balance various legal considerations, employee rights, and business interests during periods of political controversy.
The First Amendment and Political Speech in the Workplace
Unlike public sector employees, private sector workers rarely have First Amendment protections for political speech at work. However, there are still legal and practical factors that private employers must consider when addressing politics in the workplace.
Further, the First Amendment freedom of speech also is not absolute. The U.S. Supreme Court has allowed content-based restrictions to the freedom of speech. A discussion of all permissible restrictions is beyond the scope of this article. However, employees should realize that even the government may impose reasonable across-the-board time, place, and manner restrictions on speech.
Employers should be aware that although employee political speech in the workplace is rarely protected, they may not be immune to free speech claims. This is issue has been highlighted at universities that have experienced turmoil due to protests about the Israel-Hamas War.
Many universities have responded by imposing strict limitations on when and where demonstrations, protests, and other forms of political speech may take place on campus. A discussion of student first amendment and other rights (e.g., Title VI of the Civil Rights Act of 1964) is beyond the scope of this article. However, since university restrictions generally apply to faculty and staff, as well as students, those restrictions also raise questions regarding workplace speech.
For example, University of Maryland (UMD) in my home state, has adopted a Statement of Freedom of Speech Values, along with strict time, place, and manner restrictions on speech in public spaces and prohibition of hate speech and other speech that isn’t protected by the First Amendment. UMD came under fire recently when pro-Palestinian/anti-Israel student groups reserved a nine-acre public space to hold an event on October 7. The proposed rally coincided with the first anniversary of the murder of 1,200 Jews at the hands of Hamas and others from Gaza, resulting in significant apprehension and pain for the UMD Jewish community.
Anticipating possible safety concerns, the university responded by adopting an across-the-board restriction prohibiting reservation of public spaces on October 7, stating that only “university-sponsored” events could take place that day. This restriction resulted in cancellation of both the pro-Palestinian/anti-Israel student groups’ and Jewish/pro-Israel groups’ reservations. Therefore, the university presumably concluded that it was a content-neutral restriction on time, place, and manner of speech.
However, a federal court disagreed and said the pro-Palestinian/anti-Israel student groups could hold their rally. The court’s decision allowed strict time, place, and manner restrictions (similar to those in UMD’s Statement of Freedom of Speech Values) and required rally sponsors to post a bond due to security and property-damage concerns. Whether UMD can prohibit non-students (e.g., “professional” protesters, like those seen at other universities) or UMD employees from participating in the rally remained an open question.
Federal and State Laws Affecting Political Speech in the Workplace
Although federal law doesn’t protect political speech in the workplace, some state and local laws provide protection for some employee political speech. And, Connecticut law (with some limitations) even extends the First Amendment freedom of speech right to the private workplace. Related to employee free speech, employers should be aware tha tnearly all states have laws prohibiting employers from interfering with employees’ right to vote or intimidating employees in connection with their voting activity.
States that restrict employer action based on employee political speech mostly only prohibit discrimination based on employee conduct outside of the workplace. For instance, District of Columbia prohibits employment discrimination based on political affiliation, and Colorado and New York laws only protect off-duty activity that doesn’t use the employer’s property. California’s law is broader and prohibits employers from “forbidding or preventing employees from engaging or participating in politics,” and may apply in the workplace.
Federal law may protect political speech in the workplace when it concerns working conditions. The National Labor Relations Act (NLRA) protects the rights of most private sector employees to engage in concerted activities related to working conditions. Although most political speech doesn’t relate to working conditions, discussion of political candidates’ positions on paid family leave, minimum wage, and similar work-related topics may in some contexts be interpreted as concerted activity relating to working conditions.
Further, although political views are not a protected class under federal anti-discrimination laws, both state and federal law may protect employees from policies that that disproportionately affects individuals based on their race, religion, color, national origin, or another protected class.
For instance, during the Black Lives Matter (BLM) movement employees faced disciplinary action for promoting BLM in the workplace by wearing BLM buttons or patches. Since the BLM is tied to race, employers who targeted BLM but allowed other forms of expression were vulnerable to race discrimination claims. Yet, at least one court held that a blanket prohibition specific to BLM might be permissible if the employer disciplined all employees wearing BLM attire without regard to an employee’s race.
Protests against Israel present similar challenges to those experienced with BLM given the strong connection between the Jewish religion and Israel. Further the Jewish people often are considered an ethnic group (actually, an ethnoreligious group), which could result in protection under race discrimination laws. As a result, anti-Israel protests have been attacked by many as antisemitic and therefore, violations of laws against religious and race discrimination.
Nevertheless, generally, private employers remain free to restrict or control political speech in the workplace or during working hours. Further, private employers for the most part can choose to hire and retain only employees who share the employer’s political beliefs – as long as those decisions aren’t related to membership in a protected class such as race or religion.
Employer Best Practices
Given the current political environment, most employers must make decisions about political speech in their workplace. Content-specific restrictions on political speech usually are lawful in the private employment context.
However, as noted with the BLM movement and political speech about Israel, there often is a complex relationship between political issues and religion and/or race. Therefore, content-neutral restrictions that apply to all employees regardless of the content of the speech are safest legally. Further, given the strong emotions surrounding many of today’s issues, including abortion and the 2024 Presidential election, content-neutral employer policies may be the best way to maintain a harmonious workplace.
In addition to verbal and written speech, employers may face symbolic speech. Determining whether symbolic speech is protected under race or religious discrimination laws can be complex and can depend on the intent of the individual engaging in the symbolic speech – which sometimes isn’t obvious.
For example, wearing a Palestinian flag or a BLM pin are examples of political speech. Wearing a star of David necklace might be considered pro-Israel political speech – but it also is a form of religious and ethnic expression when worn by a Jewish individual.
An individual of Arab descent might wear a keffiyeh as a means of ethnic expression. But the same apparel also can be anti-Israel or pro-Palestinian symbolic speech, particularly when worn by someone who is not of Arab descent. Therefore, an employer may well be able to ban individuals who do not identify as Arab from wearing keffiyehs, since those individuals could only be wearhing them as a means of political speech.
When adopting workplace speech policies, employers should consider the following:
Employers should ensure they know and comply with applicable state and local laws, as well as federal laws.
Policies should be content neutral.
Policies should not disproportionately affect protected groups.
Policies should be practical given the specific workplace environment.
Policies should be clearly communicated and be unambiguous and consistently-applied.
Employers should entertain requests for accommodation of sincerely held religious beliefs and ethnic or racial identity (as with the star of David example).
Employers should establish clear dispute resolution procedures to address employee concerns or conflicts.
Conclusion
Although private employers have broad latitude to restrict political speech in the workplace, in doing so they must navigate a complex web of federal, state, and local laws. In today’s divisive political climate, blanket bans on all political discourse may seem appealing to employers. However, blanket bans may be challenging when political speech is inextricably tied to racial or ethnic identity or religious beliefs, which are protected under employment laws.
© 2024 by Elizabeth A. Whitman
Any references to clients and their legal situations have been modified to protect client confidentiality.
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