Free speech and discriminatory behavior in the workplace

Free speech and discriminatory behavior in the workplace

Earlier in the summer, a professional baseball player made headlines when he did not kneel before the first pitch of a baseball game. Opposite to his behavior, his fellow players and opponents knelt in support of Black Lives Matter. The player in question received a great deal of pushback from the public and when asked why he decided not to kneel, he said “I am a Christian.” Since this incident, players in the National Football League, Major League Soccer, and the National Basketball Association have similarly refused to take a knee, some with reasoning and some without a statement. The baseball player’s response was an interesting one because it creates multiple problems from a legal perspective.

What kind of actions can a company require from its employees?

First, does this particular player have the right to remain standing if the rest of his teammates or his organization asked him to kneel?

From a strictly free speech point of view, he is entitled to his opinion. He can choose to say or not say or stand or kneel as he wishes. But the question becomes: can an employer create a rule which would require an employee to kneel?

If the issue is relevant to the operation of the business, then yes – the employer can require certain kinds of speech. If you’ve gone to Chick-Fil-A and ever said “thank you,” you may have noticed that the employees respond with “my pleasure.” Saying “my pleasure” is a directive that has come from corporate management and it is part of the operation of the business.

If that same employer said that every time a customer says “thank you” then you have to say “black lives matter,” now you are getting into something that is not relevant to the operation of the business. This is where things get dicey. You can require employees to behave in certain ways, but you cannot require an employee to engage in political speech.

Religious rights protections under the law

Let’s get back to our major league player: is he required to kneel?

Well, I don’t know if he is required to kneel. I haven’t seen any documentation showing that his team ordered all players to kneel. But, he makes an interesting comment. He chose not to kneel because he is a Christian. That statement creates an interesting wrinkle to the story.

Is this player setting himself up for religious rights protection? Potentially. An employer cannot discriminate against an employee based on religion. It would be an interesting legal challenge if this player’s team required him to kneel in violation of his religious beliefs. He could have a very strong case for discrimination.

What does this have to do with employers and employees at large? It is not a good idea for employers to get in the business of using political speech with their employees.

Dress code policies and discrimination law

By the same token, it is also worthwhile that an employer can restrict the kinds of speech during working hours. If an employee showed up at a place that does not have a uniform wearing apparel with a specific political message, such as a Make America Great Again hat, an employer may say that the employee has to change. Any employer who considers this type of policy should speak with an attorney and take a critical look at their existing dress code policy.

This is a very fluid section of the law. The free speech advocate in me says let people express their views. But the business lawyer side of me says employers should take a very risk averse approach. The least risky action you can take is to have a dress code policy that says something such as “we don’t wear clothing with slogans or any political attire.” You could also have a policy that restricts the type of political activities that employees can engage in at work. The goal is to avoid political activity entirely because it could lead to viewpoint discrimination. Everyone belongs to a protected class and everyone deserves equal treatment, despite their differences in beliefs or opinions.

My advice: avoid the risk. Do not try to dictate to your employees any political or social statements that they are required to make.