When I was in government, a Equal Employment Opportunity Training on Preventing Discrimination and Harassment in the Workplace. The country was at war during that time. The banter took on a political tone when the substantive discussion turned to inappropriate comments made at work. One participant claimed that he was entitled to use “The First Amendment” right to “say what he wants”. The man then said that “our boys fighting so I can exercise [his] right” led to a confrontation that needed to be handled.
There was, and is, an international conflict, with a groundswelling of divergent views. Social media is a powerful tool that can be used to spread a wide range of ideas.
This article aims to discuss the management of workplace attitudes expressed in response global events that may trigger “backlash” discrimination, i.e. overt workplace discrimination directed at Americans whose nationality is involved in a conflict.
The government has tools and best practices to balance and manage the equity of The First Amendment within the public sector. This article focuses on the private sector. Passions will be ignited, and opinions will not be lacking, whether it’s bodycam videos showing violence, or incidents where the faithful are killed in their place of worship, hate crime, or war.
Employers have to consider three things:
- Should employees be allowed to express their personal views at work?
- Is there a problem if an employer learns that an employee has made hate speech on their personal account?
- Should employers make statements in response to local, national or global events
Three examples of how issues arise
Example 1. In response to the recent conflict Employee A displays a small banner on the door of his office, which represents one of the combatants. The following day, Employee B whose office is located two doors away places a large flag on his front door, reflecting the other party in the conflict. Both A and B carry out their duties without incident.
Example 2. Employee B sends Employee A an email about the war, and both employees engage in “hate speech”. A and B were the only two employees involved in the communication, but A told his supervisor about it.
Example 3. An employer makes a statement to the company about the war, carefully balancing the historical, political, and humanitarian implications. However, the employer does not take a position. Employee A asks the company “Why can’t we take a stand?”
Three Examples of Addressing the Problem
In Example 1, both employees express their opinions and positions through flags. There were no heated discussions, and both employees carried on with their work. It is the employer’s duty to monitor this situation. Employers should not take any action such as asking employees to remove flags, unless they have a company policy that prohibits flags from being displayed in the workplace. Note that asking only one employee to remove the flags can lead to an internal “backlash” discrimination complaint. According to the EEOC, “backlash” discrimination is more prevalent during wartime.
Example 1 is a challenging example because it was not a typical workplace situation, but only arose due to the conflict. The employer must act with extreme caution in Example 2, as it involves personal, political, and national origin feelings.
ADR modules are now available in many private sector companies. They aim to resolve disputes amicably, even when they are complex and thorny. These options can range from arbitration to mediation (third-party intervention). Some employers have ADR in their toolkit, but most don’t.
In Example 2, the employer’s first priority is to resolve the conflict. As soon as possible, individual meetings should be scheduled. If there is a company policy that prohibits “hate speech,” both employees should receive a communication from the C-Suite notifying them of their violation and telling them to “cease-and-desist.” This will help the employees realize the severity of the situation. The issue is easier to manage because the “hate-speech” exchanges between A and B were not sent in an email that was shared with the entire company. There are no universal answers, but the employer should avoid taking a stance on the issue. Instead, they should focus solely on the violation and correction of the company’s policy.
Does “hate speech” at work warrant separation? In the 21st Century probably yes. Should A and B get fired? Depending on the employee’s work history, their disciplinary record or lack thereof, and whether or not the act was a first impression, any disciplinary action taken should be based on the facts. Confidentiality can be managed effectively when the dispute is limited. However, disputes that affect the entire company are more difficult to manage. All stakeholders must be involved in the C-Suite decision making process. Even if the roles of general counsel and human resources are not part of the C-suite, they should be included as they are important stakeholders. The Collective Bargaining Agreement will be a key variable for private employers who have represented staff.
Example 2 was a limited example, but Example 3. is a serious issue for the entire company. To Opine or not to Opine’ is the question for CEOs, given the volatility of the triumvirate that includes politics, war and religious issues. In Example 3, the CEO released a carefully crafted statement to maintain a neutral position. Neutrality is an opinion. The employee’s request was not for a partisan view. A worker who has a political connection to one side asks “Why can’t take a stance?” In the 21st Century, CEOs and leaders in the private sector are under pressure to express their opinions (internally and/or externally) about global, local and political matters. Boards of directors, employees, donors, students or shareholders may all be under pressure, especially when it comes to geopolitical issues with historical, religious and cultural significance, as well as military connections with the United States.
This article is not intended to be a definitive solution for any of the problems raised, but rather to serve as a tool to educate. The days of the “no comment”, as a practical and legal position, are long gone. However, the writer believes there is at least one mechanism for employers who wish to either be neutral or refrain from taking a position, like the CEO in the Example 3. The Employee Handbook is that mechanism.
The most recent war is in the Middle East. War is the oldest conflict resolution method in human history. There will be more “hate speeches” and divisive views. State/city agencies will use force in an unreasonable or illegal manner against unarmed citizens. The issues in question will always elicit strong emotions and these feelings will be expressed in public and at work.
It is possible that employers will want to preempt these issues by including policies in their Handbook. As an example, the Acme Breadmaking Company’s Board of Directors has a resolution that states “the Acme Breadmaking Company does not comment on matters of public concern.” Staff can refer to this policy when issues arise. The policy could also include the language found in handbooks from 15 years ago. “Employees should be reminded to only use office equipment and emails for business purposes. Communication should be restricted to issues and matters that are relevant and incidental to a company’s operations. It is advised that employees do not use the company email to send personal messages. It is the firm’s culture that allows and encourages birthday wishes, condolences etc. Such clauses are first line preemption.
Businesses that depend on individual donors or grants must complement the sample policy with an internal and external communication strategy. In the current climate, the question ‘how could a CEO not take a stand?’ is what drives expectations for a partisan statement from a chief executive officer. The business goal, regardless of industry, is to capture, retain and attract market share. A partisan position can alienate stakeholders. A principled, well articulated neutral position can also alienate stakeholders. A policy that prohibits such statements could be the best solution.
Opinions expressed outside the workplace
Two employees are “friends”. They use a social media platform. This platform has nothing to do with the workplace. All opinions are those of employees. The employee who observed the “hate speech,” directed at one of the enemy combatants during the current war, informed human resources about his observations. The employee who observed the incident informs Human Resources of his observations. Has anyone been fired for similar reasons? Yes, particularly when it comes to racially or politically charged issues.
Is it a good practice for an employer to terminate an employee because of “hate speech” or other distasteful remarks on a social media platform? It depends, as with so many legal questions. This fact sheet is designed to help employers understand how employee opinions can impact workplace. This issue, like all others, must be addressed by the necessary and critical stakeholders. This analysis should also include an internal review, including the employee record, and a review the Employee Handbook, to make sure that the clause stating “employment at will” is included in both the handbook, and the offer letter, as well as the Social Media Policy, (if one exists). The social media review must not only focus on the alleged statements, but also any references to the company that could affect the perception of the company.
We live in a nation of 350,000,000 Americans, and many of them will have an opinion, which they will sometimes want to share in the workplace. The opinions are not under the control of employers, but the tools they use in the workplace must be controlled by them. This means putting the right policies, practices, and communication strategies into place.
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