Perhaps you’ve noticed a certain amount of incivility in political discourse. You may have even noticed that the current U.S. president has a somewhat polarizing effect. Some people love him. Some people hate him. And many hold those who don’t share their beliefs in contempt.
What if that incivility spreads into the workplace? Can employers get sued if employees feel that they’ve been discriminated against for their political views?
California Labor Code § 1101 prohibits employers from having “any rule, regulation, or policy” (1) forbidding or preventing employees from engaging or participating in politics or running for office; or (2) “controlling or directing, or tending to control or direct the political activities or affiliations of employees.” That statute prohibits employers from taking action against employees for their political activities that don’t directly affect their job performance. So employers in California are not allowed to discriminate based on political activities or affiliations. Employers are, however, allowed to take action when employees’ expression of their political views affects their job performance or that of co-workers.
What if employees claim that their co-workers are creating a hostile work environment because of their political affiliation? “Talia poured coffee on my MAGA hat and it wasn’t an accident!” There the law is less clear. (I’m assuming the employee wasn’t wearing the hat at the time – that would be battery.) Political belief is not a protected category under state and federal discrimination laws. There are plenty of reasons why employers want to prevent abusive behavior in the workplace. But unless the employee is advocating on behalf of a protected group (e.g. arguing that the employer underpays workers of a particular race) or for employee rights (e.g. seeking to organize workers), I see no law that requires employers to prevent political disagreements at work. In other words, California has yet to recognize a claim for a politically hostile work environment.
One thing that is clear is that employee’s told to refrain from political arguments at work can’t turn to the First Amendment’s guarantee of freedom of speech. That guarantee doesn’t restrict what private (as opposed to government) employers can do.
In the past, we’ve done a Halloween post on whether it’s OK to discriminate against monsters. But this subject is much scarier.