Talking about Controversial Topics at Work

by Daniel B. Griffith, J.D., SPHR, SHRM-SCP

Article content is provided by HigherEdJobs.
You've heard the maxim: Never talk about politics and religion at work -- or racial tensions, Islamophobia, immigration, climate change, abortion, gun control, or any number of other controversial topics. College campuses ignore this maxim as such talk is essential to student learning and academic freedom and inquiry. It is also often protected speech. Previous contributors have covered such matters extensively, discussing free speech generally, policies limiting speech, academic freedom and its consequences, and in the context of academic responsibility and civility. Much of the rhetoric focuses on issues like student protests, rallies, and sit-ins, professor rants and tweets, speech codes and administrators who support them, and hubbub around controversial speakers on campus. The higher education workplace is not immune from these tensions, though they may be constrained by workplace policies and expectations that place parameters on how, when, and where employees can exercise their free speech rights.

Without outlets for employees to engage in these conversations free from fear of adverse employment consequences, colleges and universities belie their commitments to developing a diverse, multicultural, and culturally competent workforce. Maureen De Armond, JD, assistant vice president for human resources at the University of Florida, notes, "Institutions of higher education, because of their educational mission, have a heightened duty to foster, host, and even encourage discussions that many employers might instinctively prefer to silence. As higher education employers, we should still be thoughtful about the appropriate time, place, and manner of the non-work related speech -- but that is more management of the when and how the conversation happens, those considerations do not speak to the content of the conversation."

This article addresses parameters for managing employee engagement in speech on controversial topics.

Institutional Profile
An institution's ability to manage employee speech depends in part on whether it is a public, private, or religious institution. The First Amendment protects speech by employees in public institutions, though employers can take measures to ensure speech doesn't interfere with getting work done. Employees in private institutions do not enjoy these constitutional protections, though states may adopt analogous rights, such as the Leonard Law in California. Religious institutions involve separate considerations. They may establish bona fide occupational qualifications requiring employees, or certain classes of employees, to practice or adhere to the institution's religious tenets. This may include requiring employees to sign the institution's mission statement or otherwise agree to abide by such tenets as a condition of employment, which in effect restricts speech and expression contrary to such tenets.

Notwithstanding these distinctions, various laws, policies, and codes of conduct will also affect how, when, and where employees may engage in free speech and expression.

Political Activity
Employees may generally express their political viewpoints and convictions at work, but concerns can arise when they speak in their representative capacity for the institution, or appear to do so, and openly endorse or criticize a candidate, advocate for legislation, or take other political positions in a clearly partisan manner. Faculty in the classroom under the guise of academic freedom may cross this line at times. While much of this speech may occur unnoticed, university administrators are challenged to respond when a professor's political activity and messages become more public and controversial and are contrary to the university's position or its policies regarding political activity. While faculty may enjoy more freedom of expression than other employees due to academic freedom protections, such protections are not absolute and administrators must decide whether to pursue formal disciplinary measures, remain silent and tolerant, or, at a minimum, make its own public statements that faculty are not speaking for the institution.

The institution's position on political activity should be clearly reflected in its policies. For example, Columbia University, a 501(c)(3) institution, has a page dedicated to Policy on Partisan Political Activity spelling out its expectations. Many public institutions also have their standards expressed in policies, guidance, and fact sheets, such as the University of Arizona's Political Activity Fact Sheet and The Ohio State University's Political Activity Guidelines.

Talking About Race, Religion, and Other Matters Related to Protected Status
Employees may engage in conversations about race, religion, and other issues relating to social identity and status, but employers may curtail such conversations if they are irrelevant to work or perceived as harassing or creating a hostile work environment in violation of Title VII of the Civil Rights Act of 1964 and other federal and state anti-discrimination laws. For example, an employee may share religious views at work to the same extent messages on other matters are permitted, but will be advised to stop or face discipline if such activities interfere with job productivity or are deemed harassing or creating a hostile work environment. This is tricky ground: if others are allowed to espouse distasteful and strident views on issues not within the purview of these laws, and such behaviors are not sanctioned, targeting religious and other forms of expression within the purview of such laws would be discriminatory. Employers should take care to ensure its policies and practices for addressing disrespectful and uncivil conduct do so regardless of message content.

Work Rules
Employers may control and limit employee speech simply by establishing and imposing rules that require adherence and commitment to job expectations. Imposition of any of these rules, provided they are uniformly and consistently applied in a non-discriminatory manner, amounts to sanctioning the rules violation, not punishing the underlying speech. Thus, engaging in chitchat and debate on controversial topics unrelated to the work itself might be sanctioned as a deficit in performance if it prevents the employee or other employees from performing work, offends employees or customers, or is contrary to expectations for serving customers. Employers may also sanction speech that becomes loud and disruptive for violating conduct codes that require respect, civility, and modulation of volume and tone in workplace settings.

"Of course, employers may (and should) manage employee performance," says De Armond. "If employees are engaging in personal conversations and dialogue unrelated to work, while on work time, employers should intervene. Employers in the education realm, just like all other employers, still have work that needs to be done. Employees who are being unproductive can absolutely be redirected. The key is to do so in a fair, consistent, and impartial manner. For example, redirecting the employees who are discussing last Saturday's football game in the same manner and with the same consistency as the employees who are discussing politics."

Speech codes are the subject of much debate on campuses and are often considered draconian and clear infringements on speech. Many such codes provide for blanket coverage of expression by faculty, staff, and students alike. Written too broadly and they may undergo scrutiny by civil rights watchdogs like the Foundation for Individual Rights in Education (FIRE) which advocates for student free expression rights. Applied to employee workplace conduct, however, such codes are simply another mechanism for regulating employee conduct, provided they do not violate relevant employment laws.

Similarly, employees on campuses may work closely with or observe students who want to exercise their free speech rights in dramatic ways, such as holding rallies in the campus quad, engaging in sit-ins at the president's office, protesting university actions, or conducting peace marches across campus. Employees may be as incensed as students about various political issues and want to join students in these activities, but shouldn't be surprised if they are disciplined for doing so during work time. Further, to the extent they take a particular view or actively encourage students to organize such activities, their actions may conflict with expectations for conduct in their capacity as representatives of the institution. And employees and students alike cannot engage in unlawful activities in the interest of furthering a cause, such as calling for "muscle" to remove reporters from covering an event or blocking traffic to stage a protest. Employment policies generally provide for discipline for criminal convictions, but employers may also terminate employees for arrests short of conviction depending on the circumstances.

"What employers should avoid is making up policy as they go," cautions De Armond. "Employees will engage in misconduct on and off the clock. This will happen -- and when the incident is tied to public protests, free speech, and matters of public concern emotions can run high. Institutions should be thinking about where they want to and can legally draw the lines ahead of a headline news incident. Having a policy spelled out and employees put on adequate notice ahead of enforcement is important for fairness and transparency (but also enforceability)."

Giving Employees Voice
With this background in mind, the knee-jerk assumption may be that employees in the day-to-day context of work don't really enjoy opportunities to voice their opinions on controversial topics after all. At one level, this is true in that the employment context places constraints on speech in the interest of efficiency, safety, civility, and getting the job done. At another level, colleges and university have vital interests in promoting inclusion, diversity, and a welcoming campus and, therefore, must find ways to ensure that free speech values and principles are embraced and enjoyed by all.

Donna Shalala, former secretary of the Department of Health and Human Services and former president of the University of Miami, said, "You can't have a university without having free speech, even though at times it makes us terribly uncomfortable. If students are not going to hear controversial ideas on college campuses, they're not going to hear them in America. I believe it's part of their education."

To this end, higher education employees should enjoy opportunities for engaging in conversations on controversial issues, though the context for providing such voice through workplace conversations, forums, workshops, dialogues, and training may contrast markedly from what students experience. Doing otherwise is its own form of repression that runs contrary to the values for fostering a civil, diverse, and inclusive working and learning environment that colleges and universities promote.