Can A Hillary/Bernie/Donald/Ted Workplace Discussion Lead to a Workplace Lawsuit?
Michael G. Trachtman
Powell Trachtman Logan Carrle & Lombardo, P.C.
MEA General Counsel
Presidential elections always provoke a heated discourse among competing points of view – that’s what fuels a democracy. But for employers, presidential elections – especially this one, present a unique and dangerous challenge: you will be damned if you do allow certain workplace political discussions, and you will be damned if you don’t allow other workplace political discussions. And it is not always easy to tell the difference.
Political Discussions and Unlawful Discrimination
Most employers know that they cannot discriminate on the basis of certain “protected categories,” such as race, nationality, age (40 and older), and gender. What they might not know is how discrimination claims are typically proven in court.
In discrimination cases, “smoking gun” evidence is relatively rare – you do not, for example, run across many emails in which the CEO dictates that only Caucasians (or, for that matter, only minorities) are to be hired, and you do not find many witnesses who will testify that the sales manager opined that women should not be elevated to management positions.
Instead, most discrimination cases are based on evidence that is suggestive of a bias on the part of a company executive or manager – such as offhand comments, emails that demean a certain nationality, hiring patterns and a willingness to ignore discriminatory conduct by others whom they have the authority to supervise and discipline.
Let’s suppose that a department head and some other employees in a company are discussing their views on the presidential candidates — perhaps they are part of a lunch break or water cooler discussion, maybe they exchange emails, sometimes they send tweets or post their views on Facebook. Here are some of the positions they take …
“We need to get back to basic, Christian values.”
“We need to ban all Muslims until we figure this whole ISIS thing out.”
“I’m not sure a woman is suited to be president.”
Fast forward to an EEOC charge brought against the company by a Muslim applicant who was not hired by the department head. “I would never discriminate on the basis of an applicant’s religion,” the department head testifies. The applicant then introduces evidence from witnesses who saw the department head stand by, mute, while other employees took the position that Muslims should not be allowed to emigrate to the United States. “So,” says the Muslim employee’s lawyer during the trial, “you claim that you have no bias against Muslims, but at the same time, you allowed employees to take the position that Muslims should be banned from the country just because they were Muslims – and you said nothing?”
Or imagine a situation where you promoted a male executive over a female executive with similar qualifications for an executive position. “You want us to believe that you would never discriminate against a woman seeking an executive position,” her attorney asks during your deposition, “but in workplace discussions, you took the position that women were not qualified to be president?”
Similar scenarios abound in the context of many other hot-button issues this election cycle is stressing. A workplace debate on whether certain religious values should prevail over the right to abortion can set the stage for a religious discrimination claim. The job protection versus the treatment of “illegals” debate implicates nationality discrimination.
Here’s the point: the rules that apply to the workplace are different than the rules that apply outside of the workplace. This is not about political correctness; this is about avoiding six-figure discrimination verdicts. Like it or not, whether it’s fair or unfair or right or wrong, there is a reality that cannot be ignored: executives and managers who espouse (or permit others to espouse) workplace views that could be reasonably construed as indicative of an unlawful bias are delivering evidence on a silver platter to employees claiming unlawful discrimination.
The solution is training – all levels of management, from the CEO to the lowest-level manager, must be trained in the nuanced strategies of recognizing the varied conduct that leads to discrimination claims.
Political Discussions and the NLRB
Those of you who follow this column or my MEA Legal Updates will be familiar with the off-the-wall positions taken over the last few years by the NLRB. For decades, the law has been that employees have the right to take “concerted action” to promote their workplace welfare and interests – that is, they have the right to communicate with each other and join together (through unions, or otherwise) to seek improvements in working conditions. Fair enough. But the NLRB has stretched that principal past the breaking point: for the ostensible purpose of protecting these employee rights, the NLRB has brought charges against, among others, employers who disciplined employees for viciously and profanely demeaning their supervisors to other employees, and even through public social media posts; employers who include a broad prohibition against disclosures of confidential company information in their employee handbooks; and employers who prohibit disclosure of employee compensation information.
This election cycle is highlighting certain issues that are likely to provoke workplace rhetoric that plays directly into the NLRB’s view of employee rights. For example, suppose you are an executive or manager, and you hear the following kinds of statements in the workplace, or you see them in employee social media posts, or other employees report to you that this sort of thing is ongoing …
“Did you watch the debate last night? The owners of this company are part of the top 1% of the Wall Street thieves the candidates talk about, and they are right – they ought to be put in jail.”
“You heard the candidates talk about companies who transfer jobs offshore. That’s what this company is doing – transferring jobs to foreigners. We need to fight back.”
“I heard this company is backing candidates who would let immigrants come into the country. They’ll work for minimum wage and take our jobs. You’d have to be crazy to work here, and I’m going to let everybody I know to stay away from this company.”
You know that workplaces are different. You know that you have a right to insist that employees not badmouth the company to other employees, or to the outside. You know you need to tamp this down.
Based on these recent NLRB rulings, and despite your common sense, what you know is very wrong.
The solution: recognize the kind of bombast this election cycle seems to provoke, and seek counsel before you take action in any context in which you are reacting to employee criticism of management or the company.
Let us know if we can help.
Michael G. Trachtman is MEA’s general counsel and the President of Powell Trachtman Logan Carrle & Lombardo P.C., a 30+ attorney King of Prussia-based law firm that has represented businesses and business people for over twenty-five years. He can be contacted at firstname.lastname@example.org. See www.powelltrachtman.com for more information.