Employers' Role In Culture War Conflicts

Escalating culture war conflicts and heightened tensions can spill into the workplace when employee conduct relates to national and global political controversies. Whether in the office, through the virtual workplace, or via social media, employee political and ideological speech may require employers to navigate various legal considerations and take action. The tensions are continuing to escalate with government agencies' inviting complaints and political figures' urging citizens to report employees to their employers.

Although these conflicts have become more commonplace in recent years, they are layered, nuanced, and continually evolving. Before taking action, employers can help minimize the influence of politicized and polarized opinions by focusing on the following key considerations, which provide a foundation for addressing conflict, responding to complaints, and navigating the potential for litigation.

Key Considerations

1. Free Speech: Though private employers are not bound by the First Amendment in the same way as government entities, there may be federal, state, and local laws regarding political expression in or away from the workplace. Discipline related to political commentary requires careful consideration and must not run afoul of those political speech protections.

2. Discrimination and Retaliation: Because opinions and comments can be associated with employee identity, there is risk that political speech is intertwined with protected characteristics (e.g., race, religion, political belief, depending on jurisdiction) and could, therefore, trigger discrimination or harassment claims. In addition, if an employee engages in protected activity, such as the complaints encouraged by government agencies and political figures, there is risk that discipline could trigger retaliation claims.

3. Consistent Application of Policies: Various policies are implicated by political speech, potentially including policies related to anti-discrimination, anti-harassment, anti-retaliation, social media use, off‐duty conduct, dress codes, workplace violence, health and safety, and more. Those policies can provide the foundation for employer response and are especially helpful when they are clearly communicated to employees and consistently enforced.

4. Stakeholder Scrutiny: Employers can anticipate that conflicts will involve more than just employees, potentially including shareholders, customers, clients, vendors, and suppliers. Employer response to political conduct can become widely publicized, draw public scrutiny, and may impact employee perception, market reaction, and other stakeholder responses. To avoid seeming unfair, hypocritical, or disingenuous, employer conduct related to political and social issues (such as political contributions, policy positions, and company statements) can be considered in establishing and enforcing expectations for employee conduct.

5. Personal Significance: Employment-related controversy can come from all directions and span myriad topics, including immigration policy enforcement, inclusion, equity, and diversity, sex and gender identity, religious rights, whistleblower protections, employee surveillance, labor organizing, and more. Acknowledgment of the deeply personal nature of these issues is an important consideration in developing both policies and a response strategy.

Takeaways

To evaluate preparedness for responding to culture war conflicts, employers can consider the following questions:

• Do our existing policies establish expectations, support a response, and limit risk?
• Are our managers equipped (trained) to respond appropriately to such speech or related complaints?
• Is Legal/Compliance informed and involved in developing a response strategy, especially when public exposure is significant?
• Is there alignment between our public statements and values (e.g., free speech, inclusion, respect) and how we address behavior in practice?
• Do we need to conduct a policy audit or develop response protocols?

By proactively evaluating preparedness, developing strategy, and evolving practices, employers can holistically navigate culture wars in a way that is consistent with the law and organizational values.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.