Questions about Politics in the Workplace Raised in the Aftermath of the Election

In the wake of last week’s contentious Presidential election, political conversation has engulfed us. And the conversation is fiery.  People are sharing passionate views with each other from all sides of the electorate and in every forum where they can be heard, including raising discussions about politics in the workplace.

One high profile example of this has garnered a lot of media attention and raises questions about what actions an employer can legally take against employees for how they have voted or what political beliefs they hold.

Particularly, last Wednesday, Matt Maloney, the CEO of GrubHub, the Chicago-based nation-wide online and mobile food ordering company, sent a company-wide email to his employees sharing his thoughts on the election. Maloney’s email stated in part:

“While demeaning, insulting and ridiculing minorities, immigrants and the physically/mentally disabled worked for Mr. Trump, I want to be clear that this behavior —and these views, have no place at GrubHub. Had he worked here, many of his comments would have resulted in his immediate termination . . . As we all try to understand what this vote means to us, I want to affirm to anyone on our team that is scared or feels personally exposed, that I and everyone else here at GrubHub will fight for your dignity and your right to make a better life for yourself and your family here in the United States.  If you do not agree with this statement then please reply to this email with your resignation because you have no place here. We do not tolerate hateful attitudes on our team. I want to repeat what Hillary said this morning, that the new administration deserves our open minds and a chance to lead, but never stop believing that the fight for what’s right is worth it.”

After facing backlash for being interpreted as asking pro-Trump employees to resign, Maloney later clarified to the press that he did not ask anyone to resign if they voted for Donald Trump, but that “To the contrary, the message of the email is that we do not tolerate discriminatory activity or hateful commentary in the workplace, and that we will stand up for our employees.”

Maloney’s email and all of the post-election discourse has raised interesting questions for employees about what their rights are with regard to politics in the workplace.

Although many may find this very surprising, federal law does not make political affiliation a protected class for employees who work for private (non-government) employers. This means, that under federal law, a private employer can fire an employee for who he or she voted for or for the political beliefs that the employee holds.  Employers, on the other hand, have a constitutional right to free speech.  So, even if Maloney’s email is construed as asking employees to resign if they voted for Donald Trump, that type of employer speech is constitutionally protected.

However, certain select states do protect employees from discrimination or retaliation by an employer over their political beliefs.  These states include California, Colorado, Minnesota, Missouri, Nebraska, Nevada, South Carolina, and West Virginia.  GrubHub’s and our home state of Illinois does not have such state law protections.

Another interesting aspect of Maloney’s email is the underlying anti-discrimination and anti-retaliation policies it promotes as they relate to politics in the workplace. From a legal point of view, GrubHub, like all other employers, is within its right to terminate an employee for discriminatory activity, even if that activity is premised on political beliefs.  In fact, many laws impose an obligation on employers to remedy discriminatory conduct once they learn of it, or else face liability themselves.

For instance, anti-discrimination laws like Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act, place obligations on an employer to take remedial action up to and including termination when the employer learns that an employee is engaging in discriminatory conduct. Discriminatory conduct includes an employee creating a hostile work environment against coworkers or subordinates by treating them in a negative manner based on gender, race, color, national origin, religion, disability, or age.

As employees, it is important to remember that even though you have a constitutionally protected right to free speech so far as the government is involved, those rights are different with respect to your employer.

As post-election discussions continue, if as an employee you choose to bring politics into the workplace, regardless of your political affiliation, be mindful that you are communicating your views in a professional and tolerant manner that respects the civil liberties and employment rights in place for those in protected classes.