The political divide meets the office
© Greg Nash

On Monday night, Hillary ClintonHillary Diane Rodham ClintonGOP rushes to cut ties to Moore Papadopoulos was in regular contact with Stephen Miller, helped edit Trump speech: report Bannon jokes Clinton got her ‘ass kicked’ in 2016 election MORE and Donald TrumpDonald John TrumpDems win from coast to coast Falwell after Gillespie loss: 'DC should annex' Northern Virginia Dems see gains in Virginia's House of Delegates MORE boxed in a prize-fight debate watched by roughly 84 million Americans. Over the next six weeks, employers need to be prepared for employees to reenact this rumble in the political jungle across offices, factories, and other workplaces nationwide. Partisanship and political feuding pose significant risks to employee morale. More than that, partisan animosity among employees can pose unexpected legal risks.

Discrimination based on political beliefs and activities isn’t just a problem for government employers.  Roughly thirty states have civil or criminal statutes which, to varying degrees, may prohibit threats, promises, or other actions based upon political beliefs, activities, or off-duty conduct generally.  New York Labor Law § 201-d, for example, expressly bars discrimination based upon an employee’s “political activities” or “legal recreational activities” outside of work.  Similarly, California Labor Code § 1102 prohibits employers from “coerc[ing] or influenc[ing]” employees’ politics “by means of threat of discharge or loss of employment,” while California Labor Code §§ 96(K), 98.6 broadly prohibit discrimination based upon “lawful conduct” outside of work. 

Given these statutes, heightened political tensions around election-time run the risk of creating seemingly “direct evidence” of discrimination, even for otherwise perfectly lawful employment decisions.  In the past eight years, politicians from both parties have referred to opposing political groups using terms such as “hostage takers,” “terrorists,” “racists,”  “traitors,” “stupid,” and the like.  Populating Facebook feeds across the country are other crude insults directed broadly at Democrats, Republicans, and other political groups.  If supervisors make similar disparaging remarks in the workplace, those statements could be held against an employer -- in much the same way that disparaging remarks directed against African-Americans could serve as direct evidence of race discrimination.   

Federal statutes may also come into play.  42 U.S.C. § 1985(3) permits plaintiffs to bring causes of action based upon conspiracies designed to “intimidat[e]” or “threat[en]” people “from giving his support or advocacy in a legal manner, toward or in favor of the election” of candidates for federal office.  And at least one court has held that “the actual firing of one employee for political activity” may be considered “a threat of similar firings” to all remaining employees.  Davis v. La. Comp. Corp., 394 So.2d 678, 680 (La. Ct. App. 1981 (interpreting a Louisiana law which prohibited employer “threats” directed against employee political affiliations).  Similarly, membership in certain ethnic or religious groups may be highly correlated with political preferences (such as 93% of African-Americans voting for Obama, or 73% of white Evangelical Protestants voting for Romney).  At least in theory, this kind of group alignment could support a disparate impact cause of action under Title VII. 

Partisanship discrimination exists, and appears to be growing, as Americans increasingly live, work, and socialize with people who overwhelmingly share their own political ideologies.  Today, for example, interfaith marriages are over 300% more common than marriages across partisan lines.  Pew Research Center, “America’s Changing Religious Landscape,” Chapter 2, May 12, 2015 (31% of marriages are interfaith, including nearly 40% of marriages since 2010) with Shanto Iyengar, Sean J. Westwood, “Fear and Loathing across Party Lines: New Evidence on Group Polarization,”American Journal of Political Science, Vol. 59, No. 3, July 2015, Pp. 690–707, at p. 692 (just 9% of marriages cross political party lines).  And, as Americans encapsulate themselves in partisan bubbles, they have grown increasingly careless of the fact that everyone around them might not think like they do.  This magnifies the risk of thoughtless, offensive, or poorly-phrased comments directed sweepingly against people who think differently -- in much the same way that people might make disparaging remarks about religious minorities without realizing that they happen to be speaking to a member of the religion they are disparaging.    

The academic evidence, similarly, suggests that political preferences may strongly influence hiring decisions.  In a recent survey, roughly 80% of staunch Democrats and Republicans preferred to hire a politically like-minded individual, at least when presented with equally-qualified candidates.  See Iyengar and Westwood, supra, at 698.  And, although this study did not specifically focus on people who make hiring decisions, there is no reason to believe that decision-makers can universally block out their political leanings when taking employment actions.

Faced with these concerns, what should employers do?  Simply banning all political discussion in the workplace isn’t an option. The National Labor Relations Act, for instance, protects at least some on-the-job political speech by non-management employees.  But employers can take some actions to minimize both workplace conflicts and legal risks.

First, employers should update their policies and procedures to make it clear that they do not tolerate discrimination based upon political beliefs or activities.

Second, employers should set guidelines about what is acceptable in the workplace.  Criticizing a particular candidate for office or specific policy proposal is fine.  Yet, just as employers should not tolerate disparaging remarks directed at members of religious groups (such as slurs directed against certain races or religions), they should similarly caution employees against maligning entire political groups (such as supporters of a particular candidate).

Third, employers should provide training about these policies.  Supervisors must set the tone.  And rank-and-file employees must know what’s acceptable, and how to raise complaints if they observe inappropriate conduct. 

Fourth, employers need to determine what state or local laws may apply to their workplace  Where possible, employers should try to minimize political infighting by setting facially-neutral policies for the workplace (such as dress codes, or non-solicitation rules) that will reduce the risk of damaging political feuds. 

Unfortunately, as with other workplace issues, there are no panaceas.  But with political temperatures rising, it is imperative that employers do what they can to keep the fever under control until the election passes and tensions abate. 

Oslick is a member of the Labor & Employment Department in the law firm Seyfarth Shaw, LLP. Follow the firm on Twitter @seyfarthshawLLP.

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