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Labor: Beware of election backlash

When political talk turns discriminatory

Last week, employees made their way to the polls by the millions to cast a vote in the 2012 general election. The results are in, but talk of the election and what the next four years will bring is only beginning. You probably have had or heard these conversations at home or with friends, on your commutes to work and also in your workplaces. So, should an employer be concerned about “election talk” in the workplace? When should an employer draw a line in the sand and put the kibosh on such talk? And, how can an employer best protect itself from related legal exposure?

Election talk in the workplace

Some election-related talk is bound to take place among employee ranks. For management, the challenge is twofold:

  1. Be aware of what is said
  2. React promptly and appropriately when employee talk crosses the line into problematic territory

While election talk may be civil and innocuous, given the hot-button political issues this election season, it is easy to see such talk spiraling into commentary that may be perceived as inappropriate, discriminatory and/or harassing based on protected categories, such as race, religion, gender and/or sexual orientation.

Situations might get particularly hairy when supervisors or managers get involved. As an example, suppose a supervisor, male or female, has a well-intentioned, seemingly innocent discussion with a female subordinate about the election, in which they disagree on the former candidates’ differing views on abortion and contraception. Several months later, this subordinate receives a lower review then in past performance periods. The supervisor says it’s due to the performance, but the employee thinks, especially in light of the supervisor’s election-related comments, that the supervisor may harbor a discriminatory animus against her because of her gender. It is all too easy to see a discrimination charge arise from this, and related, scenarios.

When to put the kibosh on it

Employers walk a fine line when it comes to election talk in the workplace. While it is likely unrealistic—and inappropriate—to attempt to prohibit or prevent all such talk, management should be trained to recognize and respond promptly and appropriately to questionable comments or encounters. The worst response to a questionable exchange is to ignore it and hope that it never resurfaces. It may well come back to haunt you. These types of issues are best addressed head-on, through appropriate investigations and, where needed, corrective action in line with the employer’s applicable policies.

Your policies are your best protection

Well-written, consistently enforced anti-discrimination and anti-harassment policies are key in helping employers minimize exposure from any election-related backlash in the workplace. Such policies should state the employer’s commitment to prohibiting discrimination and harassment based on the categories protected by applicable federal, state and local laws; incorporate clear, legally compliant reporting procedures; include appropriate anti-retaliation language and include disciplinary measures for any violations. Of course, the best written policy is worth little to nothing, unless consistently enforced by trained management. With a solid foundation built from strong policies and smart practices, and knowledge of potential discrimination-related issues, an employer should be well-prepared to evaluate and formulate the right response strategy for any elected-related backlash in the workplace.

Contributing Author

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Sonya Rosenberg

Sonya Rosenberg is an attorney in Neal, Gerber & Eisenberg’s Labor & Employment Practice Group. Her experience includes counseling employers through the many...

Additional Contributors: William J. Tarnow

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