political speech or affiliation , an employee ’ s speech might receive de facto protection if it triggers coverage under another law . For example , the Patient Protection and Affordable Care Act (“ ACA ”), commonly known as “ Obamacare ,” remains a hot button political issue that requires certain employers to offer affordable health coverage to fulltime employees . If an employee asks their coworkers to support a political candidate because of the candidate ’ s position respecting the ACA , the employee is discussing politics , but they are also engaging in a discussion concerning the company ’ s benefits package . This could be protected under Section 7 of the National Labor Relations Act (“ NLRA ”), which prohibits all employers , public and private , from restricting employees from engaging in concerted activity related to the terms of conditions of their employment . The key question is whether the employee ’ s comments constitute an attempt to engage other employees in “ concerted activity ,” for which the standard is low . Simply asking for a “ like ” on social media can take a comment from being a solitary statement to becoming an attempt to engage in “ concerted activity ” that receives protection under the NLRA .
Fortunately , protection for “ concerted activity ” has its limits . If an employee ’ s speech is patently offensive and violates the company ’ s anti-harassment policies , it may be unprotected . However , it can be challenging to determine where the NLRB draws the line of “ offensiveness .” Two recent cases involving Google software engineers illustrate this point . In 2018 , a Google programmer named James Damore circulated a memo on the company ’ s internal message board stating that the company ’ s equal employment opportunity (“ EEO ”) policy should be revised because , he argued , men were intellectually and biologically better suited for programming jobs while women were prone to “ neuroticism .” Google fired Mr . Damore . Then , in 2020 , a second Google engineer posted an anonymous memo in which he complained that employees who criticized the company ’ s EEO policy and expressed conservative views were treated unfairly . Thereafter , the unnamed employee repeatedly posted about sensitive political issues , including the company ’ s diversity and inclusion policies . He even made light of an alleged incident of sexual harassment . Google disciplined this engineer as well . Both men filed charges with the NLRB claiming that Google had violated their right to participate in concerted activity concerning the terms and conditions of their employment . Google defended both charges on the ground that they were offensive and harassing to women in violation of the company ’ s policies . Interestingly , the same member of the NLRB decided both cases . Although both charges involved conduct that would ordinarily have triggered protection under NLRA Section 7 , the Board Member concluded that Mr . Damore ’ s memo constituted sex harassment , and was therefore not entitled to protection , 15 whereas the unnamed engineer ’ s memo was “ somewhat insensitive towards women and minorities ” but “ not so offensive or disruptive as to be unprotected by the act .” 16
The Intersection Between Politics and Protected Classes Other federal laws can also overlap with political speech . Two examples are The Age Discrimination in Employment Act of 1967 (“ ADEA ”), which prohibits discrimination against employees aged 40 and older on the basis of their age , and Title VII of the Civil Rights Act of 1964 (“ Title VII ”), prohibits harassment and discrimination based on an employee ’ s race , color , religion , sex , or national origin . Recently , the Supreme Court decided that the definition of “ sex ” includes not only gender , but also gender identity and sexual orientation .
This issue can be further complicated if the political speech includes religious expression . Title VII requires employers to reasonably accommodate the expression of an employee ’ s sincerely held religious beliefs in the workplace , provided the accommodation doesn ’ t create an undue hardship . However , allowing an employee to express certain traditional religious beliefs , e . g ., that marriage is meant for one man and one woman , may be a double edged sword as the employer also has an obligation under Title VII to protect homosexual employees from harassment . Thus , a pair of employees who repeatedly argue the merits of the Defense of Marriage Act could be creating a hostile workplace for themselves or others , but disciplining one or both could lead to claims of religious and / or sex discrimination . If the employer disciplines both employees because their bickering hurt productivity and created a hostile work environment , the employees might still sue , but evenhanded treatment at least puts the employer on a reasonable footing . If the employer instead disciplines or fires only one of the employees based on their politics , the defense is on a shakier footing even though political affiliation isn ’ t technically a federally protected characteristic .
What General Advice Can I Give My Client ? On a more general level , perhaps the best advice you can give your client is to proactively cultivate a culture of civility and respect . Avoiding politics altogether may be the best path . In most jurisdictions , employers may place reasonable , commonsense limits on political speech in the workplace , particularly when the limits are facially neutral . Employers can limit or ban visual political displays like posters , bumper stickers , campaign buttons , and t-shirts from the office . They can prohibit employees from raising funds or soliciting votes for political candidates while at work , can keep political programming off of breakroom televisions , and can take other reasonable steps to limit politics in the workplace . Make sure to check state law before giving this advice outside of Georgia , but it will be valid in many places . Likewise , managers should be trained to promote civil dialogue and respect amongst co-workers while keeping their own politics private to avoid the appearance of discrimination . If possible , managers can steer workplace conversations away from politics while praising the company ’ s respect for diversity of opinion and the unique value that each employee brings to the organization . Simple reminders that employees should treat their coworkers with
18 October / November 2020