Don't Base Employment Decisions on Political Views by Heather Bussing

This article was created in partnership with employment lawyer and law professor, Heather Bussing, who was compensated for her work. 

It's a big election year, the kind that comes around every four years. In 2012, A. Barton Hinkle of the Richmond Times Dispatch wrote an essay called The Wrong Side Absolutely Must Not Win. It's more relevant than ever today.

“(I)t’s clear that the people on the Other Side are driven by mindless anger – unlike My Side, which is filled with passionate idealism and righteous indignation. That indignation, I hasten to add, is entirely justified. I have read several articles in publications that support My Side that expose what a truly dangerous group the Other Side is, and how thoroughly committed it is to imposing its radical, failed agenda on the rest of us.”

We have strong opinions and we tend to express them. We believe we are right. After all, the positions are so opposed that one side definitely must be misguided and wrong.

It's hard to consider that people on both sides have legitimate beliefs, concerns, and issues they feel are important. It's also essential to remember that we are being bombarded with content designed to get us to click. It's often misleading and sometimes completely made up. 

Mostly, we are humans who like people who agree with us and dislike people who don't—which brings us to employment decisions. Politics is also a source of significant bias that can relate to opinions about religion, gender, race, and other protected factors that don't belong in employment decisions. 

It's tempting for employers to issue an edict prohibiting politics at work and to only hire people who agree with the political views of the decision makers. It promotes peace and productivity. 

Here are some of the legal issues involved and how to handle them.

When Political Affiliation is Protected

In some places, political affiliation is protected by state law. 

For example, in California, an employer can't discriminate against someone because of their political beliefs or activity. Generally, California employers cannot take actions designed to control or direct employees' political activity or affiliations. And they can't forbid someone from participating in politics or running for office. This is not quite a "protected class," but it does provide fairly broad protections for political activity outside of work.

New York and Washington DC have similar protections. It would be hard for businesses in DC to operate otherwise. New Mexico prohibits discrimination based on political ideology. And Oregon and Wisconsin employers can't discipline employees for refusing to attend meetings where the employer is expressing its political or religious views.

In other states, employees have limited protections allowing them to sign petitions or belong to a political party. This SHRM article has a nice map of states with various forms of political protection for employees.

Off-Duty Conduct Protections

California and many other states also protect employers from disciplining employees for their legal off-duty conduct, which includes political activity outside of work. The fundamental principle involved is that employers only pay employees for their time and work and don't get to control what they do outside of work.

But there are a couple limitations. One is: the off duty conduct has to be legal. So illegal drug use, drunk driving, and pretty much anything you could be arrested for doing is not going to be protected by employment law. 

The other limitation is when the off-duty conduct causes harm to the employer's interests. This is where it can get tricky, especially in the age of social media. 

Suppose someone posts a photo on Instagram. The photo shows they're at a political march and the image is someone holding a controversial flag and wearing a t-shirt that advocates racist views. So far, this is legal off-duty activity. 

But the person in the photo is the head of TA for your organization. Someone points this out in another post. Soon, the photo goes viral and it ends up on the front page of the local newspaper identifying the employee, what they do, and where they work.

Suddenly, the person who is in charge of hiring people for your company is famous for their discriminatory views. Your customers are demanding action and threatening to cancel their business. This would definitely be harmful to the employer's interests and it would be legal to fire the person because their legal off-duty conduct is having a detrimental effect on the business.

It's difficult territory. This is when it's important to consult your employment attorney and to make decisions based on someone's actions rather than solely based on their political or other beliefs—even when those beliefs are posted on social media.

The right approach is to leave political views out of employment decisions as much as possible. Your policies and practices should be politically neutral because employment decisions should be made on qualifications, experience, skills, and talents, not tangential information about employees that has nothing to do with the job. 

What to Do

To that end, here are some do's and don'ts.

• Don't screen candidates or employees for political views. Regardless of whether there are legal protections for political activity, make hiring and promotion decisions based on qualifications instead of beliefs. If background screening and political views is an option, be sure to ask that it not be included.
• Don't make rules prohibiting political discussions at work. While this may seem like a practical solution, it's almost impossible to create a rule that won't run into some other protection like the NLRA right to organize a union and to discuss wages, hours, and working conditions. Trying to define what's prohibited will likely cause as many problems as it would prevent. If you thought being the break and lunch police was a pain, just imagine being the political discussion police.
• Do encourage people to be professional and focus on work. It's okay to acknowledge that it's an election year and that politics can be polarizing. Encourage people to focus on work. It's also fine to ask people to keep campaigning, fund raising, and political signs, clothing, and hats outside of work. 
• Do handle situations on a case by case basis. Sometimes there is a fine line between political discussions and harassment based on gender, race, religion and other protected factors. You don't have to tolerate illegal discrimination or harassment in the guise of politics, particularly when the conduct is distracting or interfering with other people's work. If it rises to the level of making people feel unsafe, it's likely you have a discrimination issue on your hands that will need legal advice and probably intervention.
• Don't tolerate discrimination and harassment, even when they are couched in politics. The line between political, religious, and discriminatory beliefs is sometimes hard to draw these days. But when beliefs turn into discriminatory treatment or harassment, it's time for the employer to act too.

Most of all, no matter what your political beliefs, treat people with compassion and keep an open mind. We agree on a lot more than the news or social media would have us believe. Look for the places where everyone is on the same side trying to accomplish the same goal. This is generally what work is all about.

About Heather Bussing

Heather Bussing is a California employment attorney with over 30 years’ experience providing sensible advice to employers. Her deep experience with business, humans, technology, and work gives her a unique perspective focused on preventing and solving problems rather than fighting about them.

Heather has been interviewed and quoted in the New York Times, Wall Street Journal, CNN, Business Insider, and NPR. She writes a daily column on the latest in employment laws, covering pay equity and transparency, AI in HR Tech, and why compliance, diversity, and fairness are good business.

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