Employers have vote on politics in the workplace

June 27, 2008

Never before has a presidential election had the potential to wreak as much havoc on workplaces as the 2008 election could bring to bear.

Most people are accustomed to a measure of division between co-workers come election season, but this historic year will see possibilities unlike any other. For the first time ever, an African-American will lead the ticket for one of the major parties, while the other party will offer up the oldest (first-time) candidate in history.

Before we turn to a solution, let’s look closer at the unique challenges facing us this election cycle. First and foremost, political debate in the workplace could easily lead to people expressing feelings about topics you normally wouldn’t condone at work. A discussion of Barack Obama’s candidacy could spark a loaded discussion about race or national origin.

Although she lost her bid for the Democratic nod, Hillary Clinton’s name often leads to a debate about the “traditional” role of women in leadership positions. Of course, it is hard to mention Hillary without bringing up Bill, and it is hard for some people to bring up Bill without bringing up Monica.

And John McCain’s age is a frequent topic when mentioning him in comparison to the other candidates. As you can see, the very nature of this campaign touches upon five of the touchiest subjects in the office: race, national origin, gender, sex and age.

So how can that lead you into trouble? As many employers have learned the hard way, discussions along these lines can lead to hard feelings, or could be used as evidence in a discrimination lawsuit to demonstrate a pattern of harassment. Whether it’s a supervisor making politically incorrect comments and speaking for the company, or water cooler talk that goes unchecked, these kinds of discussions could potentially be as costly as the proverbial dirty joke or racial epithet made by ignorant employees.

The good news is that there are fairly simple solutions to these problems. Most employers are free to control employee chatter about presidential politics – just as they can prohibit most other forms of inappropriate communication at work.

Private employers are not constrained by the First Amendment and a person’s right to free speech. This means that they should not feel hampered in limiting what their employees can and can’t say, even if the comments are made in the context of discussing politics. If an employee makes a sexist comment but happens to be talking about why he voted for Obama over Clinton, you should discipline the employee just as you would if he was talking about any other subject.

Moreover, even political debate entirely free of offensive topics can be addressed. If you notice that your employees are spending more time discussing the candidates’ positions on health care than they are focusing on work, you have the absolute right to refocus their attentions at the peril of discipline. Employees who forward around e-mails touting their preferred candidates’ qualifications can be made to cease and desist, just as you would ask workers to limit any non-work-related messages.

Here are some more tips to help you survive what promises to be an exciting election year:

• Be consistent.

Employers can run into trouble if they favor the supporters of one candidate over another. If you come down hard on the McCain supporter for talking about the Republican position on immigration while turning a blind eye to the Obama backer who is spending as much time talking about the evils of NAFTA, you may be opening yourself up to a discrimination claim. Even though political orientation is not a protected class, there are plenty of ways for such treatment to be cast as illegal workplace discrimination.

• Train your managers.

Let them know to keep an ear open around the water cooler for divisive subjects, and make sure they understand that political discussions are not to be treated any differently when it comes to applying discipline.

• Address e-mails.

Employers need to develop a consistent approach to dealing with e-mails sent out by employees, such as those who want  to know if others want

to join them with volunteer activities or campaign donations. Opening your e-mail servers up to such traffic might also mean that you have to tolerate union organizing materials, so you may want to prohibit all non-work-related blast e-mails from being sent by employees.

• Deal with poor productivity.

The good news is that lawsuits resulting from political activity and speech are rare, even in a charged election year such as this one. While you should be vigilant about addressing controversial subjects, the bigger problem might just be the inordinate amount of time your employees spend talking about non-controversial topics. Don’t feel so relieved to hear a civilized debate a- round the water cooler that you ignore the fact that work is being neglected.

Rich Meneghello practices employment law in Portland, Ore. This article first appeared in The Daily Journal of Commerce, another Dolan Media publication.

Written by Rich Meneghello  |  Filed Under Office Practices 

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