Mc Kenna - The Legal Limits of Tolerance: Managing Controversial Employees

Susan K. McKenna, Esq.

Jackson Lewis LLP

390 N. Orange Avenue, Suite 1285

Orlando, FL 32801

(407) 246-8429

[email protected]

The Legal Limits of Tolerance:

Managing Controversial Employees

Examples of Controversial

Employees

• Political activists

• Body art aficionados

• Religious “cultists”

• Transgendered employees

Political Activists

Recent study: 80% of employees

believe it would be illegal for their

employer to fire them for engaging in

political expression at work. Freedom

of speech, right?

Not so fast. In most cases, the 80%

are wrong.

The First Amendment

Bill of Rights only applies to “state

action,” not private employers.

Unless another statute is implicated,

no federal protection for engaging in

political activities at work.

State Laws Affecting Employees

Some states protect:

• political activities

• free speech

• right to display flags

• off duty conduct

of private sector employees.

Florida does not.

Restricting Political Expressions

• Example 1: employee disciplined for

causing tension and hurting morale by

bombastic, politically polarizing

speech.

• Example 2: employee ordered to

remove confederate flag decal from

toolbox after African American co-

worker complained.

Restricting Political Expressions

• Example 3: supervisor disciplines

employee for actively promoting a

candidate or political cause with which

the supervisor disagrees.

• Example 4: supervisor’s active, vocal

support of a candidate allegedly

creates a “hostile workplace” for

employees who support the opponent.

Discrimination Implications

• Offensive depictions of candidates

(based on race, ethnicity, gender)

• Anti-immigrant rhetoric

• Opponents to gay rights initiatives

National Labor Relations Act

Section 7 protects concerted activity

for “mutual aid or protection.”

Can apply to employee conduct which

addresses a specifically identified

employment-related concern through

political advocacy.

NLRA Protections

Non-disruptive advocacy on

employee’s own time in non-work

areas for a specifically identified

employment concern is protected.

On duty advocacy is subject to

employer’s lawful and neutrally

applied work rules.

Limits on Employer Speech?

2008 complaint filed with Federal

Election Commission alleged

employer violated federal election

law by discouraging votes for

then-Senator Obama because he

supported EFCA.

Federal Election Campaign Act

Limits permissible employer political

advocacy to executives, managers,

policy makers only -- not low level

supervisors or nonsupervisory

personnel.

Body Artists at Work

Recent statistics: 40% of adults age

18 to 40 have a tattoo or non-

earlobe piercing. Only 36% of

employers have policies about

body piercings, 22% for tattoos.

How Body Artists Are Viewed

Vault.com: 85% of respondents

believe tattoos hinder getting hired,

and 64% believe it has a negative

impact on co-worker and

supervisor opinions.

Most commentators agree, but predict

attitudes will change as the decorated

move into managerial positions.

Employer Rights

Employers have wide discretion to

prohibit or restrict body art.

Can employers impose dress or

grooming standards which can be

seen as gender discriminatory or

sexual stereotyping?

Accommodation Obligations

The seminal case: Clotier v. Costco –

Church of Body Modifications

believer attacked company’s

enforcement of no facial jewelry

policy.

Reasonable accommodation analysis

by appellate court weighs strongly in

employer’s favor.

Best Practices

(1) Thoughtful policy which defines the

purpose (professional or identifiable

appearance; promote a positive workplace

which limits distractions caused by

provocative or inappropriate dress;

workplace safety) and parameters of the

restrictions.

(2) Consistent enforcement of policy.

(3) Recognition that redefinition of standards

over time is a possibility.

Religious “Cultists” or Zealots

• What is a “cult” is in the eye of the

believer -- religion’s broad reach

under Title VII

• Bona fide religious belief, sincerely

held

• Covers all aspects of religious

observance and practice, including

religious speech

Religious “Cultists” or Zealots

• When accommodation and

harassment considerations collide

• Proselytizing and the creation of a

hostile workplace

• Employee (or supervisor) discomfort at

the avidly faithful or proudly atheist co-

worker

Transgendered Employees

• Gender identity or expression differs

from conventional expectations of

masculinity or femininity

• Includes transsexuals, transvestites

and androgynes

• Even gay-friendly workplaces can

experience difficulties

Workplace Issues

• Pronouns and names

• Dress and grooming standards

• Restroom facilities

• Client / customer

communications

Best Practices

(1) Knowledge is power

(2) Be proactive – don’t wait for the issue to

arise and have to play catch up

(3) Transition team protocols and processes

(4) Employee communications and training

(5) Involve the transgender employee

(6) Consistent enforcement of behavior

standards and expectations