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Elephants and Donkeys: Does Your Organization Resemble a Zoo this Political Season?

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As a contentious election dominates the 24-hour news cycle, many employees are bringing their political affiliations and ideologies to work. Elephants and donkeys run rampant, creating a zoo-like atmosphere within some organizations. According to a 2022 study, over a quarter of U.S. workers engage in political discussions with their coworkers.[1] Vendors and customers may even join in the fray. Typical workplace challenges may be amplified when opposing viewpoints are shared or even shouted. What’s an employer to do when the worlds of news and work collide and impact productivity or morale? What legal guardrails exist to guide a supervisor’s conduct when handling situations that are at least distracting and at most volatile? Let’s take a look at what the law requires or permits and then use a bit of common sense to understand how to manage these issues.

Political Affiliation/Activity Discrimination

What is a political affiliation or activity? Political affiliation is identifying with a specific political party or ideology, while political activity refers to action taken to support political beliefs.[2] Joining a union or a political party would be a political affiliation while attending a rally would be considered political activity. 

May an employer legally treat employees differently based upon their political affiliation or activity?  The short answer: a qualified yes. First, it depends upon whether the employer is public or private. Public employees are generally protected by state and federal constitutional provisions, including the First Amendment, while employees of private companies are not protected from discrimination based purely on political affiliation or activity.[3] Title VII of the Civil Rights Act of 1964 prohibits employers from making job decisions based on race, color, national origin, religion, or sex; other federal laws prohibit discrimination based on genetic information, disability, and age.  Absent from these categories is political view or affiliation. The major federal employment anti-discrimination laws do not include political behaviors or beliefs as protected categories.[4] Since political views are not covered by these federal laws as well as the laws of most states, employers are typically free to consider political views and affiliations in making job decisions.[5] There is no federal law that creates a protected class based on political beliefs or actions.[6]

Some states have enacted laws to address job decisions based on political activity. For example, Colorado, North Dakota, and Utah prohibit discrimination based on "lawful conduct outside of work."[7] Connecticut prohibits discrimination based on the rights guaranteed by the First Amendment, even for private employers so long as the activity does not substantially interfere with the employee's job performance.[8]  Other states, such as California and New York, prohibit discrimination for off-duty "recreational activities," which could include attending political events.[9] Certain jurisdictions, including California, Colorado, Guam, Louisiana, Minnesota, Missouri, Nebraska, Nevada, South Carolina, Utah, and West Virginia prohibit retaliation against employees for engaging in political activities like demonstrations.[10] Always review your state’s laws before making any job decisions because of an employee’s political activities.

Real-life Situations

But should employers ever make job decisions regarding an employee based on the employee’s politics?  What does that look like in practice? For example, an employer makes it clear in job postings that “Liberals Need Not Apply,” or “Conservatives Should Just Keep Looking.” Such a requirement may be legal, yet it will likely prevent some job seekers from applying, provoke contentious employee discourse, and send a potentially divisive message to that organization’s clients and vendors. 

 What about the following situations where an employer might terminate an employee for:

  • wearing a distinctive political red cap into the office;
  • attending a rally protesting Israel’s military campaign in Gaza; or
  • running for city council with a political party affiliation?

These scenarios are fraught, as individuals often feel strongly about political issues. But could those actions be illegal? Potentially, the actions described above could be a pretext for illegal discrimination if, for example, the employer believes that liberals are more likely to be women. The termination of an employee for wearing a distinctive political red cap could be a pretext for illegal discrimination if the employer believes older, white males wear such caps. It’s not quite as simple as it appears at first blush.  The actions mentioned above could affect morale generally and affected employees may quit or seek counsel from an attorney.         

Remember, because something may be legal does not mean it’s the right thing to do.    

Proactive Steps to Tame the Political Zoo

Consider the employee relations ramifications of treating workers differently because of their political activities.

Employees who do not feel respected because of their political views and affiliations may, at a minimum, not feel valued and even go so far as to quit an organization. They may also refrain from contributing ideas and ultimately may seek alternatives in which to use their experience and skills. The costs of hiring and retraining new workers are high. Prospective employees who could contribute may not apply for a job opening because of the employer’s reputation. The bottom line: why lose people or customers because of their political perspectives?         

Revisit applicable policies.

Determine whether political slogans or symbols are permitted in the workplace, whether on signs, buttons, or clothing, and enforce any such policy consistently. Decide whether employees can utilize work email addresses for personal matters, such as encouraging colleagues to vote for certain candidates. Remind employees that they are in the workplace to work rather than to convert or influence others regarding their political ideologies.

Training

Training both managers and employees on the fundamentals of a respectful workplace is a critical part of fostering productive relationships at work. Only eight percent of organizations have communicated guidelines to employees around political discussions at work.[11] Difficult discussions about appropriate workplace conversation can be moderated in a training space with guardrails. Everyone needs a reminder to respect and value those who come into their sphere of influence in the workplace, whether they are co-workers, subordinates, or customers. 

Lead by example

Focus on the goal: maintaining a productive, profitable workforce built on respect. Acknowledge that whatever political viewpoints are held, approximately 45% of employees, customers, and vendors likely disagree with those viewpoints. Leaders should value all workers, regardless of political bent. 

While working together to create an environment that fosters respect in the midst of a contentious political season can be challenging, it is a cornerstone of building a respectful organization.

 

 


[1]SHRM Study Reveals 20% of Workers Mistreated Due to Political Views,” October 5, 2022,  https://www.shrm.org/about/press-room/shrm-study-reveals-20-workers-mistreated-due-to-political-views.

[2] LegalMatch, “Political Affiliation Discrimination,” https://www.legalmatch.com/law-library/article/political-affiliation-discrimination.html.

[3] Birmingham Jr., John F, Kopp, Jeffrey S., Demonstrators in the Midst? Handling Political Activity in the Workplace, February 20, 2019, https://natlawreview.com/article/demonstrators-midst-handling-political-activity-workplace.

[4] Spiggle, Tom, Is Political Discrimination in the Workplace Legal?, February 24, 2021,  https://www.forbes.com/sites/tomspiggle/2021/02/24/is-political-discrimination-in-the-workplace-legal/.

[5] Guerin, Lisa, Can Employers Discriminate Based on Political Beliefs or Affiliation?, October 3, 2023,  https://www.nolo.com/legal-encyclopedia/can-employers-discriminate-based-on-political-beliefs-or-affiliation.html.

[6] Smith, Allen, Did You Know?  Workers can be Fired for Their Political Affiliation and Activity, January 24, 2024, https://www.shrm.org/topics-tools/employment-law-compliance/fired-political-affiliation-activity.

[7] Birmingham Jr., at www.natlawreview.com (this footnote is in short citation form from the footnote above).

[8] Id.

[9] Id.

[10] Id.

[11]SHRM Study Reveals 20% of Workers Mistreated Due to Political Views,” October 5, 2022, https://www.shrm.org/about/press-room/shrm-study-reveals-20-workers-mistreated-due-to-political-views.