A Contentious Presidential Election, #BlackLivesMatter and Bathroom Laws: Addressing Polarizing Current Events in the Workplace

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Spilman Thomas & Battle, PLLC

It is practically impossible these days to turn on the news, get on the internet or listen to the radio without hearing about some polarizing event. Whether it is a debate over the presidential candidates, the #BlackLivesMatter movement, or the legality of North Carolina’s HB-2 (dubbed the “Bathroom Bill”) or other similar state law, the American populace is being bombarded from all sides. These issues have generated a very strong response from the public, often seeing people taking diametrically opposed views.
 
An example of the public divide can be seen in this story from BuzzFeed News about an American Airlines flight attendant who wore a “Black Lives Matter” pin aboard a flight.
 
With the American public more divided than ever, it is no surprise that these differing viewpoints bleed into the workplace. A June 2016 Society for Human Resource Management survey reported that more than 25 percent of the workforce reported tension, hostility or arguments among co-workers because of political affiliations. People do not stop having personal opinions on these weighty issues when they walk through the door of an establishment. An employer in modern society must take steps to prepare itself to respond when these issues affect the workplace.
 
While it is unrealistic to expect employees to check their personal opinions at the door (and a prohibition against all such discussions would violate the National Labor Relations Act (“NLRA”) anyway), employers limit such discussions where they become disrespectful to other employees, distract from worker productivity or violate a workplace policy. Employees in private workforces do not have an unfettered First Amendment right to freedom of speech while at work.
 
Employers should enforce their workplace policies with respect to these polarizing issues in the same manner as it would in any other situation. Ultimately, the focus should be on the conduct and whether it complies with the policies of the employer. For example, an employee working for an employer governed by Title VII may be lawfully disciplined for making statements in the workplace reflecting opposition to permitting persons to use the bathroom of the gender with which they identify. Because the Equal Employment Opportunity Commission  has said that gender identity is protected by Title VII, employers subject to Title VII must take affirmative steps to comply with it or risk claims of harassment, discrimination or creation of a hostile work environment. Thus, employees can be forced to comply with policies with which they may not personally agree. Similarly, an employee who misses work to attend a demonstration or protest may be disciplined if the employee fails to comply with the employer’s attendance policy. The key is the uniform application and enforcement of workplace policies.
 
Very often, however, these issues do not arise in the workplace, but on social media or after work. While an employer cannot prohibit its employees from being friends on Facebook, engaging on social media or being active in political and social movements, the employer does have a right to limited regulation of an employee’s off-duty conduct in certain circumstances. First, where the employee hold themselves out as a representative of the employer (i.e., by stating they are an employee on their social media page, or by wearing an item of clothing with the employer’s name/symbol), the employer has the right to regulate conduct if it negatively impacts the employer. But, employees are permitted under the NLRA to complain about the terms and conditions of employment without risk of employer discipline. Second, where the off-duty conduct occurs between employees and could constitute evidence of bullying, discrimination, harassment or retaliation, the employer may discipline for it even if it occurred outside work and while off-duty.
 
In addition to application of neutral employment policies, a proactive employer will take steps on the front end to limit the likelihood such issues arising in the first place through diversity and inclusion training and open dialogue. Training employees on employer expectations and best practices for handling these divisive issues is key. Training should be conducted periodically, but ideally at least once per year.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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