Black Lives Matter, My Body My Choice, Make America Great Again: The thorny path of navigating political speech in the workplace
One need only watch cable television or visit social network sites to understand how deeply divided our country is along social, religious, and economic lines. As the 2022 mid-term elections approach, now is a good time to revisit policies regarding political speech in the workplace. A case involving a flight attendant for Delta airlines highlights some of the challenges employers face.
Delta airlines was sued last month by a Black flight attendant who claims that she was fired after posting a cartoon to Facebook showing then-President Donald Trump wearing a Ku Klux Klan hood. Delta asserted that the post violated its policy against “disrespectful, hateful, or discriminatory [social media] posts.” The flight attendant claimed that the cartoon was simply an expression of her personal political sentiments. Importantly, she alleges that White employees posted similar social media content but were not fired.
In an interesting twist, the flight attendant claimed that Delta airlines discovered her social media post after she herself had complained about another flight attendant who posted content on social media that had “racial implications,” and which offended the Black flight attendant. After the flight attendant whom the Black flight attendant complained about was terminated, that terminated flight attendant forwarded the Black flight attendant’s social media posts regarding former President Trump to Delta’s human resources department.
Many employees of private companies falsely believe that they have a “constitutionally protected” right to political speech in the workplace. The right of free speech guaranteed under the Constitution applies to government actors. It does not apply to private (non-government) employers. Employees of private employers do not enjoy a Constitutional right to engage in political speech free from interference by their employer.
That does not mean, however, that such employees have no legal rights. Under Utah law, a private employer may not terminate or discipline employees for their “lawful expression or expressive activity outside of the workplace regarding the person’s religious, political, or personal convictions, including convictions about marriage, family, or sexuality, unless the expression or expressive activity is in direct conflict with the essential business-related interests of the employer.” Thus, Utah employers may not take disciplinary action against an employee for posting political content on the employee’s own social media account, unless the post is in direct conflict with the employer’s business objectives. That is a high standard to meet.
As for speech in the workplace, Utah law states that employees have the right to “express the employee’s religious or moral beliefs and commitments in the workplace in a reasonable, non-disruptive, and non-harassing way on equal terms with similar types of expression of beliefs or commitments allowed by the employer in the workplace, unless the expression is in direct conflict with the essential business-related interest of the employer.” Again, showing that the expression is in direct conflict with the business interests of the employer is a tall order.
Some employers in responding to these issues, have created policies outright prohibiting political (and similar types of) speech in the workplace. That is allowed under Utah law. Others, recognizing that political speech in the workplace is likely inevitable, have set parameters around such speech, restricting the tone, time or place of such communications. That is also allowed under Utah law, within the parameters outlined above (that political speech be treated similarly as other types of speech not directly related to work). In crafting such a policy, employers must ensure that they do not restrict an employee’s right to discuss the terms and conditions of employment; such a restriction violates federal law.
As the recent Delta case demonstrates, regulating speech in the workplace is an area fraught with potential land mines. Employers should contact their legal counsel to analyze existing policies or to craft new policies regarding political, religious, and related speech by employees in the workplace.