The new year has brought a new Congress, an ongoing government shutdown, and rumblings of the first formal campaign announcements for 2020. With more voters participating in last year’s election than ever before, employers should be prepared to handle issues arising from employees’ political speech and conduct.
The 2018 midterms were the first in history with a turnout surpassing 100 million voters, tallying a percentage turnout not seen in a midterm since at least 1970. Even though this past election is now (mercifully) behind us, there can be no rest for the weary; voters are more engaged – and more vocal – than ever. Employees are sharing their political opinions inside and outside of the workplace. This may be particularly problematic for employers who either hold different values or who do not wish for an employee’s speech or conduct to be attributed to the company as a whole.
The First Amendment’s protection of “freedom of speech” only extends to actions by the government to block free speech. Thus, the First Amendment does not shield private employees from being disciplined or fired because of something they said. Indeed, one does not have to look very far for examples of private employers disciplining or firing their employees for controversial conduct or a political statement. Just last month, for example, a major television news network fired one of its prominent commentators for giving a speech that some perceived as anti-Israel. Similarly, in 2017, a national football team owner threatened to bench any player who kneeled during the national anthem.
Nevertheless, there is often a fine line between protected versus unprotected conduct or beliefs. For example, an employee who is fired for publishing an anti-LGBT post to her Facebook page may attempt to argue that those views are based on her bona fide religious beliefs.
Likewise, Title VII (and other laws) requires an employer to reasonably accommodate an employee’s religious practices unless doing so would create an undue hardship. Depending on the facts, it may be a hardship for an employer to allow one of its employees to openly advocate for a political candidate because of shared religious beliefs.
