Can Employers Control Speech in the Workplace?
Our President is not shy about staking out controversial positions, and this is carrying over into the public discourse. And these conversations can and do occur in the workplace. So what can a private employer do about controversial discussions – tied to race, politics, gender, etc – in the workplace?
Title VII prohibits discrimination based on race, sex and religion, among other things. Not every conversation involving these topics is necessarily discriminatory, but they can very easily cross the line or be perceived as discriminatory. And of course, the employer has the obligation to ensure that its employees are not subjected to a hostile work environment created by discriminatory comments by co-workers or managers.
There are no federal laws applicable to private employers that protect employees on the basis of their political affiliation. (Public employers, however, may be subject to such laws). As far as state laws, only a few – such as California, Louisiana, and the District of Columbia – have enacted laws that prohibit discrimination by private employers against an employee based on political affiliation. Some cities and counties may have local ordinances that also provide such protections. In those jurisdictions, employers cannot take any adverse employment action against an employee simply because he supports a particular political party.
Regardless of whether political affiliation protections exist, however, a private employer can prohibit political discussions in the workplace. And certainly it can prohibit speech that is discriminatory or harassing. “But what about the First Amendment right to free speech?” some may ask. The First Amendment and similar state laws prohibit government actors from limiting citizens’ free speech rights – but they do not apply to private employers. So employees do not have a right to free speech in a private workplace, and the employer can choose to restrict speech on any topic – including politics, race, religion, and gender.
Of course, there are caveats. At least two states – South Carolina and Connecticut – protect freedom of expression. But even there, and certainly in all other states, employers can prohibit speech if it is disruptive.
In addition, the National Labor Relations Act, which applies to both unionized and non-unionized workplaces, protects employees’ rights to engage in discussions about the terms and conditions of employment. So if the discussion involves, for example, which political candidate may be better with regard to wages or benefits, for example, that specific discussion may be protected under the NLRA, even if the speech is disruptive (e.g. the employee uses a raised voice or profanity).
And realistically, should an employer ban all discussions of politically or racially sensitive topics in the workplace? That seems rather extreme, even if it is permissible. Certainly the employer can and should ban any speech that is discriminatory or harassing. And the employer can ban speech that is disruptive (subject to the NLRB caveat above), whether in content or expression. But the employer should ensure that any such prohibitions are being applied consistently.