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T or F: Employers Shall Make No Rule Abridging the Freedom of Speech?

T or F: Employers Shall Make No Rule Abridging the Freedom of Speech? Background Decorative Image

It’s been so long since I’ve taken a True/False quiz, and as a young man I generally detested the format. Although the answer to the question in the title of this post is False, there really is more to it than that! While the First Amendment does not apply to private employers and has not been interpreted to prohibit employers from setting certain restrictions on speech in the workplace, many states (including California, Colorado, Connecticut, Illinois, Louisiana, Maryland, Mississippi, and New York) do have laws that prohibit employers from discriminating against employees because of their political views, especially political views expressed outside of the workplace. In such states, an employer who terminates an employee because of their political views could end up facing a wrongful discharge lawsuit.

As the 2020 presidential campaign gets into high gear, employees are more likely to start discussing politics in the workplace. While most are able to discuss politics amicably, there are always a few employees who are unable to address political issues without offending others. It is imperative that employers know the appropriate response and understand the quilt of laws surrounding political speech in the workplace.

In looking at this issue, the first thing to remember is that the First Amendment of the U.S. Constitution does not apply to private employers. While a public employer could not generally terminate an employee because of the employee’s political views or his support of a political candidate, in many states – including my home state of Texas – a private employer could actually terminate an employee simply because the boss disagreed with the employee’s politics.

I am happy to report that in the nearly thirty years that I have been practicing employment law, I have never had a client ask me whether he could terminate an employee simply because they were supporting a particular political candidate. The only instance where I can recall that an employer terminated an employee who expressed political opinions was one whose political views also reflected explicitly racist views that were contrary to their company’s stated policies and offensive to a large number of employees in that workforce.

Of course, one way to avoid any claims of discrimination based on political views is to simply prohibit any discussions of political issues in the workplace. My experience has been that most employers would rather not impose such a strict prohibition against political discussions. They may be asking themselves, “T or F: Our democratic society benefits from involved citizens engaging in robust discussions, and it makes sense for people to sometimes talk about political issues with their coworkers?”

Perhaps the best approach is not to make it a simple T or F question. Rather employers may make sure that their employees understand both that they can occasionally talk about politics but also that all their discussions with coworkers must be respectful and civil. No one should ever engage in (or continue to pursue) a conversation that would make another coworker uncomfortable. And, in the event that the employer ever has to discipline an employee for violating this rule, the employer should make it clear that it was not the employee’s political views that resulted in the discipline but rather the way he communicated them.

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This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.