Political Discussions in the Workplace: The Freedom, the Fury and Where is Emily Post When We Need Her?

While the advent of the internet and the popularity of social media might lead you to believe that polite society doesn’t exist in 2024, the workplace might be a place where Emily Post’s rules need to be considered. Hot button political topics often touch upon extremely personal matters- those same matters, discussed carelessly, can form the basis of employment discrimination claims if you’re not careful.

While a survey from the Pew Research Center indicates that the most standout political concern for 2024 is the state of the economy, many Americans, absent a finance or economics background, struggle to discuss the economy with much vigor or sophistication. Discussing the NASDAQ or US Treasury inverted yield doesn’t inspire the same furor that more personal topics like race, access to healthcare, crime, and immigration induce. Not everyone has a stock portfolio, but everyone identifies with one (or more) races and has a need for, or experience with, healthcare. Everyone can discuss these topics with some level of existential expertise. And to the extent that these topics intersect with American concerns about the economy, all the better.

Freedom of Speech Versus Equal Rights

Assuming you work in the private sector, the First Amendment does not apply to your employment relationship. The Bill of Rights shields individuals from the overstep and infringement of the Federal government, not private individuals or businesses. That being said, The Equal Opportunity Act of 1972 (‘the Act’) does apply to private businesses. Powered through and enforced by the U.S. Equal Employment Opportunity Commission (“EEOC”), the Act provides protection from employment discrimination on the basis of actual or perceived race, color, creed, religion, national origin, ancestry citizenship status, age, or gender (together, “Protected Classes”) for employees of companies with over 15 employees. The EEOC takes responsibility for investigating complaints under several laws enacted to protect employees from discrimination based upon their “Protected Class.”

Practical Concerns

Fortunately, or unfortunately in these polarizing times, “political affiliation” is not a Protected Class as such. However, many of the topics ripe for discussion during a presidential election year can touch upon topics near and dear to those in Protected Classes. For instance, conversations about immigration and secure borders, sometimes deemed “the border crisis” could be upsetting or disturbing to employees who have immigrated. Likewise, conversations about abortion or the Supreme Court’s overturning Roe v. Wade can raise gender issues that are offensive to both men and women who have feelings on either side of the topic.

However, discussion alone is not the problem. The problem presents itself when an employee from one of those Protected Classes feels as though they are being discriminated against based on his/her/their Protected Class status. Discrimination in employment can take many forms and can often be hard to distinguish from legal workplace actions, absent the wrong processes, procedures and documentation. For instance, if an employee who struggles with anxiety and depression and faces discipline or termination for poor attendance or performance, they might file a discrimination complaint if that termination came after that employee complained about discriminatory or derogatory comments his/her/their supervisor made about people with mental health conditions. The conversation then becomes not about performance or attendance, but rather about whether that employee a) deserved protection under Family Medical Leave of Absence (“FMLA”), Americans with Disability Act (“ADA”), b) was terminated due to their supervisor’s opinions about people in the employee’s Protected Class, or c) was terminated due to retaliation resulting from the employee’s complaint about the supervisor’s commentary.

Union Suit

Given the liability involved, it may be tempting for employers to limit discussions of these topics completely. But ask any legal scholar, and they’ll tell you that the law rarely provides such clear-cut solutions. The National Labor Relations Act (“NLRA”), one of the earliest employment-related laws, makes the complete abolishment of political conversations unwise. Born of the Great Depression and the Second New Deal, Congress, using its power under the Commerce Clause, passed the NLRA in 1935 to promote “workplace democracy by providing employees at private-sector workplaces the fundamental right to seek better working conditions and designation of representation without fear of retaliation.” NLRA.

Essentially, the NLRA provides private sector employees the right to collectively bargain for better working conditions to balance the power between the employer and the employee. At the time of its inception, labor disputes and strikes often resulted in civil unrest and violence. Because the right to strike was not recognized, business owners were often permitted to use force and rely upon government and municipal assistance to do so.

While we don’t necessarily see physical force used to inhibit union efforts now, employers can run afoul of the NLRA more subtly by limiting the topics that can be discussed amongst employees. The NLRA protects “Concerted Activity,” which has been defined to mean, amongst other things, discussions between employees about wages, working conditions, benefits, and hours. Given the Pew survey discussed earlier regarding Americans’ political concerns about the economy, you can see how these topics, discussed generally or specifically, can turn political. A conversation about the minimum wage, pay inequality, or maternity/paternity leave are perfectly appropriate topics to discuss under the Concerted Activity protections of the NLRA. However, that same conversation could lead to commentary about race, gender, age, etc. that creates a foundation for a future discrimination complaint.

On top of those pitfalls, the NLRA provides for a board that is highly political. The National Labor Relations Board (“NLRB”) consists of a quasi-judicial board of five members and a General Counsel, appointed by the executive to five year terms. As you can imagine, the potential turnover of the board every presidential election cycle creates uncertain outcomes as to what is permitted and prohibited under the NLRA.

Ounce of Prevention

Understandably, this may seem like a losing proposition. Allowing employees to discuss political topics openly seems dangerous but restricting their conversations creates NLRA concerns. As with most things in life, an ounce of prevention is worth a pound of cure. In employment, this can take many forms. Here are some quick tips to prevent the pitfalls above:

1. Create Strong Policies and Procedures Surrounding Anti-Harassment, Anti- Discrimination and Equal Opportunity: The first thing your lawyer will ask you upon receipt of a claim of discrimination is to see your policy related to the complaint. Defending yourself against a claim of employment discrimination proves difficult if you don’t have a policy against discrimination and a way to investigate its claims. This deficiency does not go unnoticed by the agencies, courts, and juries that review employment discrimination claims.

2. Follow those Policies and Procedures and Document Results: Having policies and procedures overcomes the first hurdle of defending yourself in the event of a complaint. Next, you need to follow policies and procedures and contemporaneously document that process. This applies not only to discrimination or harassment policies but also other policies, particularly as they apply to termination or adverse employment decisions. Often employers will terminate an employee for poor performance or attendance in violation of their written job description or the company’s policies. While they may have grounds for that decision, failure to properly document those grounds casts doubts on the reasoning behind the termination. It then becomes much harder to prove that the termination decision was for cause and not due to discriminatory reasons, should a current or former employee file a claim of discrimination. Post hoc rationalization and documentation does not carry the same weight as that same paperwork done at the time the action was taken.

3. Review Results on a Regular Basis: While documentation is great, failure to review it on a regular basis might leave room for implicit bias in the application of your policies and procedures. Reviewing the results from your policy application might shed light on disparate treatment unrecognized at the time of effect. Even better, maybe you discover no disparate treatment, and you have record of that for future claims of discrimination that may arise. Doing this exercise regularly demonstrates your sincere commitment to the policies and values your company purports to uphold.

4. Conduct Demographic and Wage Reviews Periodically: Like reviewing results of policies can provide insight into the innerworkings of your organization, touching base with the market and comparing the demographic and wage trends to those of your company helps not only calibrate your offerings, but also sheds light on disparities that might otherwise go overlooked. The Department of Labor Statistics provides a great free resource for these types of examinations.

5. Conduct Trainings on Diversity, Equity and Inclusion (“DEI”): Do not be tempted to rubber-stamp your DEI initiatives. Although the act of having a DEI policy and practice does evidence commitment, which never hurts, the value of DEI lies in the substance of the initiative and whether that substance inspires connection and belonging and not toxic positivity. Employees who feel connected to and valued by the companies they work for are more likely to view the actions of their coworkers in the best light possible, limiting the likelihood of those same employees attributing malintent to the commentary or behavior of their coworkers and managers.

As an added benefit, DEI strengthens business, making companies more adaptable to change. According to the Harvard Business Review, DEI initiatives improve the change power of a company by as much as 80%.

“Because they embrace a variety of perspectives, DEI efforts build inclusion and strengthen an organization’s purpose. Shared commonalities become the principles around which everybody can unify, aligning leaders and helping push forward meaningful organizational change.”

– Harvard Business Review, May 5, 2023

6. Set the example: “Do as I say, not as I do!” It’s a non-starter. According to Lean Enterprise Institute:

“People follow their leaders, consciously or unconsciously. What the leader demonstrates as important is what the team will focus on.”

– Erin Urban “Do as I say, not as I do” October 21, 2014

The easiest way to avoid claims of discrimination is by creating an environment where discrimination is not tolerated. That comes from the top. Encouraging and expecting leaders to demonstrate the values of the company emphasizes the importance to those who rely on those values to feel psychologically safe in their workplace.

All’s Well that Begins Well

Absent hiding under a rock for the next 2-3 months, there is no escape from political topics, not on Hulu, not on the radio, not on the billboards on your drive to work, and, unfortunately, not even at work. That does not mean you have to allow those conversations to create a basis for employment discrimination. Having policies and procedures, enforcing them, and having a sincere commitment to DEI is your escape hatch. Creating a culture of safety and inclusion, living your company values through introspective and reflection, and holding leaders accountable for all the above turns this potential liability into an opportunity for growth and development that can strengthen your company over time.

Consult with an employment attorney at MWH Law Group regarding any questions or concerns related to these issues.