There can be no doubt that the recent presidential election was extraordinarily divisive, causing real friction between even the closest friends and relatives. The election and the constant news coverage of the candidates led to discussions that involved not only traditional party line issues, but also issues relating to civil rights and immigration on a level of polarization unseen in recent years. These conversations naturally filtered into the workplace, leading to comments between coworkers that implicated issues traditionally viewed as “taboo” for water cooler talk—such as race, ethnicity, religion, gender (including sexual harassment), and transgender and LGBTQ rights. Unfortunately for employers, concerns regarding these conversations—and the legitimate issues they pose for work productivity, morale, and potential litigation—have not ended with the election cycle, and instead, are continuing anew with every development from Washington. How do employers balance free speech rights with the risks of permitting dialogue impacting these subjects? Moreover, with the growing interest in social movements and political protests, how do employers handle employee participation in events such as “a day without immigrants,” and “a day without women”?
The First Amendment to the U.S. Constitution provides that “Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble…”. Although commonly perceived as a protection for all speech—a misperception, because the First Amendment operates only to prevent government restrictions on expression—generally, private employers can limit speech in the workplace. Indeed, in most states, employers are within their rights to prohibit political discussions entirely, as long as that restriction does not operate to prevent employees from talking about the terms and conditions of their employment, which would run afoul of the broad rights afforded union and nonunion employees by section 7 of the National Labor Relations Act.
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